Texas Administrative Code Title 19

Education: As effective August 6, 2010

Chapter 249

Subchapter A

§249.3: Definitions

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

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

(A) admission to an educator preparation program;

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

(C) reinstatement of a previously suspended certificate.

(2) Administrative law judge (ALJ)--a person appointed by the chief judge of the State Office of Administrative Hearings (SOAH) under Texas Government Code, Chapter 2003.

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

(4) Applicant--a party seeking any of the following from the TEA staff or the State Board for Educator Certification (SBEC): issuance of a certificate (including issuance of a new certificate following revocation, cancellation, or surrender of a previously issued certificate); renewal of a certificate; or reinstatement of a suspended certificate.

(5) Cancellation--the invalidation of an erroneously issued certificate.

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

(7) Certificate holder--a person who holds a certificate issued under the Texas Education Code (TEC), Chapter 21, Subchapter B.

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

(9) Chief judge--the chief administrative law judge of the SOAH.

(10) Code of Ethics--the Code of Ethics and Standards of Practices for Texas Educators, pursuant to Chapter 247 of this title (relating to the Educators' Code of Ethics).

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

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

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

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

(15) Educator--a person who is required to hold a certificate issued under the TEC, Chapter 21, Subchapter B.

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

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

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

(19) Good moral character--the virtues of a person as evidenced, at a minimum, by his or her not having committed crimes relating directly to the duties and responsibilities of the education profession as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53) or acts involving moral turpitude.

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

(21) Invalidation--rendered void; lacking legal or administrative efficacy.

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

(23) Mail--certified United States mail, return receipt requested, unless otherwise provided by this chapter.

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

(25) Moral turpitude--improper conduct including, but not limited to, the following: dishonesty; fraud; deceit; theft; misrepresentation; deliberate violence; base, vile, or depraved acts that are intended to arouse or to gratify the sexual desire of the actor; drug or alcohol related offenses as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53); or acts constituting abuse or neglect under the Texas Family Code, §261.001.

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

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

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

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

(A) the TEA staff;

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

(C) a person appealing the administrative denial of any of the following:

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

(ii) reinstatement of a suspended certificate.

(30) Presiding officer--the chair or acting chair of the SBEC.

(31) Proposal for decision--a recommended decision issued by an ALJ in accordance with the Texas Government Code, §2001.062.

(32) Quorum--a majority of the 14 members appointed to and serving on the SBEC pursuant to the TEC, §21.033; eight SBEC members, as specified in the SBEC Operating Policies and Procedures.

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

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

(35) Reprimand--the SBEC's formal censuring of a certificate holder.

(A) An "inscribed reprimand" is a formal, published censure appearing on the face of the educator's virtual certificate.

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

(36) Revocation--a sanction imposed by the SBEC permanently invalidating an educator's certificate.

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

(38) Sanction--

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

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

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

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

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

(42) Suspension--a sanction imposed by the SBEC temporarily invalidating a particular certificate until reinstated by the SBEC.

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

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

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

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

Comments

Source Note: The provisions of this §249.3 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112; amended to be effective June 21, 2009, 34 TexReg 3944

§249.4: Applicability

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

(1) sanctions sought against a certificate holder;

(2) appeals of administrative denials;

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

(4) reinstatement of a suspended certificate;

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

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

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

(c) This chapter shall apply to any matter referred for a contested case hearing.

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

Comments

Source Note: The provisions of this §249.4 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.5: Purpose

The purpose of this chapter is:

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

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

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

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

(5) to enforce an educators' code of ethics;

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

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

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

Comments

Source Note: The provisions of this §249.5 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.6: Construction

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

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

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

Comments

Source Note: The provisions of this §249.6 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.7: Signature Authority; Seal

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

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

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

Comments

Source Note: The provisions of this §249.7 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.8: Agreements to Be in Writing

Unless otherwise provided in this chapter, no agreement between parties or their representatives related to a matter under this chapter will be enforced unless it be in writing and signed by the parties to the agreement or their representatives and appropriately filed with the papers as part of the record.

Comments

Source Note: The provisions of this §249.8 adopted to be effective March 31, 1999, 24 TexReg 2304

§249.9: Ex Parte Communications

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

Comments

Source Note: The provisions of this §249.9 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.10: Conduct and Decorum

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

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

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

Comments

Source Note: The provisions of this §249.10 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

Subchapter B

§249.11: Test Irregularities; Appeal; Sanctions

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

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

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

Comments

Source Note: The provisions of this §249.11 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.12: Administrative Denial; Appeal

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

(b) The Texas Education Agency (TEA) staff may administratively deny any of the matters set out in subsection (a) of this section based on satisfactory evidence that:

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

(2) the person lacks good moral character;

(3) the person filed a fraudulent application;

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

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

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

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

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

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

Comments

Source Note: The provisions of this §249.12 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.13: Cancellation of an Erroneously Issued Certificate

(a) When satisfactory evidence indicates that a certificate was issued in error and the person issued the certificate has not fulfilled all certification requirements, the Texas Education Agency (TEA) staff shall cancel the certificate by updating the person's virtual certificate. Before canceling the certificate, the TEA staff shall notify the person issued the certificate that the TEA intends to cancel the certificate and shall provide the person issued the certificate at least ten calendar days to respond and show cause why the certificate should not be cancelled.

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

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

Comments

Source Note: The provisions of this §249.13 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.14: Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition

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

(b) Complaints against an educator, applicant, or examinee must be filed in writing.

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

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

(1) that an applicant for or a holder of a certificate has a reported criminal history;

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

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

(B) possessed, transferred, sold, or distributed a controlled substance;

(C) illegally transferred, appropriated, or expended school property or funds;

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

(E) committed a crime, any part of such crime having occurred on school property or at a school-sponsored event; or

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

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

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

(B) A person required to comply with this paragraph shall notify the governing body of the employing school district before filing the report with the TEA staff; or

(4) any other circumstances requiring a report under the Texas Education Code (TEC), §21.006.

(e) A report filed under subsection (d) of this section shall, at a minimum, describe in detail the factual circumstances requiring the report and identify the subject of the report by providing the following available information: name and any aliases; certificate number, if any, or social security number; last known mailing address and home and daytime phone numbers; name or names and any available contact information of any alleged victim or victims; and name or names and any available contact information of any relevant witnesses to the circumstances requiring the report. A person who is required to file a report under subsection (d) of this section but fails to do so timely is subject to sanctions under this chapter.

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

(1) renders a finding that good cause did not exist under the TEC, §§21.105(c)(2), 21.160(c)(2), or 21.210(c)(2). This finding constitutes prima facie evidence of the educator's lack of good cause, but is not a binding determination in a contested case hearing; and

(2) submits a written complaint to the TEA staff within 30 calendar days after the educator files a written resignation with the school district in the manner provided by the TEC, §§21.105, 21.160, or 21.210. This deadline applies even if the school district does not accept the educator's written resignation. If the educator does not submit a written resignation, the employing school district may determine the effective resignation date for purposes of this section, which shall not be later than 14 days after the educator fails to appear for work without district permission under the terms of the contract.

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

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

(A) any conduct constituting a felony criminal offense;

(B) indecent exposure;

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

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

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

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

(B) The letter notifying the certificate holder of the investigation shall include a statement of the alleged conduct, which forms the basis for the investigative notice, and shall provide the certificate holder the opportunity to show cause within ten days why the notice should be removed from the educator's certification records.

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

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

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

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

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

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

(2) The TEA staff may toll this time limit if information is received indicating that there is a pending criminal matter related to the alleged act of misconduct that gives rise to the investigative notice. For purposes of this subsection, a criminal matter includes an arrest, an investigation, or a prosecution by a criminal law enforcement agency. Upon receiving notice that the criminal matter has been resolved the tolling period shall end. As part of its procedure, the TEA staff will attempt to make bimonthly (once every two months) contact with a law enforcement agency where a criminal investigation is pending to determine whether the criminal investigation has been closed or otherwise resolved.

(3) The TEA staff may toll this time limit if the matter is referred for a contested case hearing, or upon agreement of the parties.

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

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

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

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

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

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

(m) The following words and terms, when used in this section, shall have the following meanings.

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

(2) For purposes of this section, solicitation of a romantic relationship means deliberate or repeated acts that can be reasonably interpreted as soliciting a relationship characterized by an ardent emotional attachment or pattern of exclusivity. Acts that constitute the solicitation of a romantic relationship include, but are not limited to:

(A) behavior, gestures, expressions, communications, or a pattern of communication with a student that are unrelated to the educator's job duties and which may reasonably be interpreted as encouraging the student to form an ardent or exclusive emotional attachment to the educator, including statements of love, affection or attraction. When evaluating whether communications constitute the solicitation of a romantic relationship, the TEA staff may consider the following:

(i) the nature of the communications;

(ii) the timing of the communications;

(iii) the extent of the communications;

(iv) whether the communications were made openly or secretly;

(v) the extent that the educator attempts to conceal the communications;

(vi) if the educator claims to be counseling a student, the SBEC may consider whether the educator's job duties included counseling, whether the educator reported the subject of the counseling to the student's guardians or to the appropriate school personnel, or, in the case of alleged abuse or neglect, whether the educator reported the abuse or neglect to the appropriate law enforcement agencies; and

(vii) any other communications tending to show that the educator solicited a romantic relationship with the student;

(B) making inappropriate comments about a student's body;

(C) making sexually demeaning comments to a student;

(D) making comments about a student's potential sexual performance;

(E) requesting details of a student's sexual history;

(F) requesting a date;

(G) engaging in conversations regarding the sexual problems, preferences, or fantasies of either party;

(H) inappropriate hugging, kissing, or excessive touching;

(I) suggestions that a romantic relationship is desired after the student graduates, including post-graduation plans for dating or marriage; and

(J) any other acts tending to show that the educator solicited a romantic relationship with the student, including, but not limited to, providing the student with drugs or alcohol.

§249.15: Disciplinary Action by State Board for Educator Certification

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

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

(2) issue an inscribed or non-inscribed reprimand;

(3) suspend a certificate for a set term or issue a probated suspension for a set term;

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

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

(b) The SBEC may take any of the actions listed in subsection (a) of this section based on satisfactory evidence that:

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

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

(3) the person has violated a provision of the educators' code of ethics;

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

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

(6) the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation; or

(7) the person has committed an act described in §249.14(g) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition), §249.12(b) of this title (relating to Administrative Denial; Appeal), or §249.16(b) of this title (relating to Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53).

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

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

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

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

Comments

Source Note: The provisions of this §249.15 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112; amended to be effective June 21, 2009, 34 TexReg 3944

§249.16: Eligibility of Persons with Criminal Convictions for a Certificate under Texas Occupations Code, Chapter 53

(a) Pursuant to the Texas Occupations Code, Chapter 53, and the Texas Education Code (TEC), Chapter 22, Subchapter C, the State Board for Educator Certification may suspend or revoke an existing valid certificate, deny an applicant a certificate, or bar a person from being assessed or examined for a certificate because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of the education profession.

(b) Subsection (a) of this section applies to a crime that indicates a threat to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague; interferes with the orderly, efficient, or safe operation of a school district, campus, or activity; or indicates impaired ability or misrepresentation of qualifications to perform the functions of an educator. Crimes considered to relate directly to the duties and responsibilities of the education profession include, but are not limited to:

(1) crimes involving moral turpitude;

(2) crimes involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor;

(3) crimes involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution, or conspiracy to transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481;

(4) crimes involving school property or funds;

(5) crimes involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator;

(6) crimes occurring wholly or in part on school property or at a school-sponsored activity; or

(7) felonies involving driving while intoxicated (DWI).

(c) Pursuant to the Texas Occupations Code, Chapter 53, the Texas Education Agency (TEA) staff shall notify the applicant or certificate holder in writing of the TEA staff's intent to seek disciplinary action, including denial or revocation, and the reasons for the proposed action. The applicant or certificate holder shall have the opportunity to be heard according to the procedures set forth in this chapter.

(d) The grounds for revoking or suspending a certificate provided by this section and the Texas Occupations Code, Chapter 53, are cumulative of the other grounds and remedies provided by the TEC, §21.060, and this chapter.

Comments

Source Note: The provisions of this §249.16 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective June 21, 2009, 34 TexReg 3944

§249.17: Decision-Making Guidelines

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

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

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

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

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

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

(1) the seriousness of the violation;

(2) whether the misconduct was premeditated or intentional;

(3) attempted concealment of misconduct;

(4) prior misconduct;

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

(6) any other relevant circumstances or facts.

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

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

(2) possessed or distributed child pornography;

(3) was registered as a sex offender;

(4) committed criminal homicide;

(5) possessed without a prescription, transferred, sold, distributed, or conspired to possess without a prescription, transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481, on school property; or

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

Comments

Source Note: The provisions of this §249.17 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

Subchapter C

§249.18: Jurisdiction

(a) A contested case commences under this chapter when a request for hearing is timely filed with the Texas Education Agency (TEA) staff.

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

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

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

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

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

Comments

Source Note: The provisions of this §249.18 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.19: Powers and Duties of Administrative Law Judge

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

Comments

Source Note: The provisions of this §249.19 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.20: Recusal and Disqualification of Administrative Law Judge

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

Comments

Source Note: The provisions of this §249.20 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.21: Substitution of Administrative Law Judge

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

Comments

Source Note: The provisions of this §249.21 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.22: Classification of Parties; Current Addresses

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

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

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

Comments

Source Note: The provisions of this §249.22 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.23: Representation of Parties

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

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

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

Comments

Source Note: The provisions of this §249.23 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.24: Filing or Serving Documents on the Texas Education Agency Staff or the Administrative Law Judge

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

(1) appeal of an administrative denial;

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

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

(4) motions for rehearing.

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

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

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

Comments

Source Note: The provisions of this §249.24 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.25: Pleadings

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

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

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

(b) In addition to this chapter, 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures) shall also govern the following matters related to pleadings:

(1) content generally of pleadings;

(2) purpose and effect of motions;

(3) general requirements for motions;

(4) responses to motions generally;

(5) motions to intervene;

(6) motions for continuance;

(7) responses to written motions for continuance; and

(8) amendment of pleadings.

Comments

Source Note: The provisions of this §249.25 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.26: Petition

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

(b) The petition shall contain the following items:

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

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

(3) a statement of the matters asserted;

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

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

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

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

Comments

Source Note: The provisions of this §249.26 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.27: Answer

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

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

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

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

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

Comments

Source Note: The provisions of this §249.27 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.28: Stipulations

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

Comments

Source Note: The provisions of this §249.28 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.29: Discovery

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

Comments

Source Note: The provisions of this §249.29 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

Subchapter D

§249.30: Notice of Hearing

(a) The notice of hearing is governed by the Texas Government Code, Chapter 2001; 1 Texas Administrative Code, Part 7, Chapter 155 (relating to Rules of Procedures); and this chapter.

(b) The Texas Education Agency (TEA) staff may serve the notice of hearing by sending it certified, return receipt requested, and regular first-class United States mail to the party's last known address.

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

Comments

Source Note: The provisions of this §249.30 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.31: Venue

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

Comments

Source Note: The provisions of this §249.31 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.32: Conduct and Record of Hearings

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

Comments

Source Note: The provisions of this §249.32 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.33: Use of Deposition Transcripts in Contested Case Hearings

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

Comments

Source Note: The provisions of this §249.33 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.34: Consolidated Proceedings

A party may move to consolidate two or more proceedings under this chapter if:

(1) they involve common questions of law and fact; and

(2) separate proceedings would result in unwarranted expense, delay, or substantial injustice.

Comments

Source Note: The provisions of this §249.34 adopted to be effective March 31, 1999, 24 TexReg 2304

§249.35: Disposition Prior to Hearing; Default

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

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

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

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

(e) For purposes of this chapter, the following shall constitute a default in a contested case:

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

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

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

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

Comments

Source Note: The provisions of this §249.35 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

Subchapter E

§249.36: Proposal for Decision

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

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

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

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

(c) The ALJ may amend the proposal for decision pursuant to exceptions, replies to exceptions, and briefs.

(d) The ALJ shall submit the proposal for decision to the SBEC, with a copy to each party.

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

Comments

Source Note: The provisions of this §249.36 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.37: Exceptions and Replies

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

(1) filed with the State Board for Educator Certification (SBEC) by mailing, hand-delivering, or faxing them to the SBEC's general counsel;

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

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

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

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

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

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

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

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

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

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

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

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

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

Comments

Source Note: The provisions of this §249.37 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.38: Review and Presentation of Proposal to Board

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

Comments

Source Note: The provisions of this §249.38 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.39: Final Decisions and Orders

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

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

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

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

Comments

Source Note: The provisions of this §249.39 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.40: Motion for Rehearing; Administrative Finality; Appeal

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

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

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

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

Comments

Source Note: The provisions of this §249.40 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.41: Procedure for Reprimand; Restriction

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

(b) Inscribed reprimand.

(1) The TEA staff shall inscribe the reprimand upon the virtual certificate of the educator.

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

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

(c) Non-inscribed reprimand.

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

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

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

(d) Restriction.

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

(2) The TEA staff shall notify the employing school district of the SBEC's order restricting the educator's certificate.

Comments

Source Note: The provisions of this §249.41 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.42: Procedure for the Suspension, Surrender, or Revocation of a Certificate

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

(b) When an order of suspension, surrender, or revocation becomes administratively final, the TEA staff shall mail to the former certificate holder notification of finality.

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

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

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

Comments

Source Note: The provisions of this §249.42 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.43: Procedure for Reinstating a Suspended Certificate

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

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

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

Comments

Source Note: The provisions of this §249.43 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112

§249.44: Reapplication Following Denial, Surrender, or Revocation

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

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

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

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

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

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

Comments

Source Note: The provisions of this §249.44 adopted to be effective March 31, 1999, 24 TexReg 2304; amended to be effective December 16, 2007, 32 TexReg 9112