Texas Administrative Code Title 19

Education: As effective August 6, 2010

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