| (a) Applicability. This section shall apply to all
hearings and reviews of actions taken under Texas Education Code (TEC), §29.022,
concerning denials of requests for the installation of cameras, denials
of requests to view a video, denials of requests to release a video,
and requests of a school district for an extension of time for the
installation of cameras. This section applies to constructive denials
of requests, which occur when a school district fails to timely issue
a denial of a request. To the extent that this section conflicts with
any other sections governing hearings before the commissioner of education,
including Chapter 157, Subchapter AA of this title (relating to General
Provisions for Hearings Before the Commissioner of Education) and
Subchapter BB of this title (relating to Specific Appeals to the Commissioner),
this section shall prevail.
(b) Denial of request. The following standards and
procedures apply to a denial of a request made under TEC, §29.022(a),
for the placement of a video camera or to the denial of a request
to release a video or to view a video made under TEC, §29.022(i)
or (l)(2).
(1) Once a request for placement of a video camera
or a request to release a video is administratively denied, the requestor
must exhaust administrative remedies through the school district's
grievance process even if the requestor opts for the expedited review
process. However, a school district, parent, staff member, or administrator
may request an expedited review even before local remedies are exhausted.
(2) After local remedies are exhausted by filing a
grievance with the school board and obtaining a school board determination,
the requestor may appeal the denial to the commissioner of education
under TEC, §7.057, by filing a petition for review.
(3) In a case where there is a denial of a request
for the placement of a video camera, the commissioner will determine
whether the person requesting placement is a person allowed to request
placement under TEC, §29.022(a-1), and whether the requestor
made a proper request under TEC, §29.022(a-3).
(4) The commissioner will not consider the cost to
the district of installing cameras or releasing a video.
(5) In a case where there is a denial of a request
to release a video, the commissioner will determine whether the requestor
is a person allowed to receive a video under TEC, §29.022(i).
The commissioner may make an in-camera inspection of the video in
question in the appropriate case.
(6) The following timelines are established for filing
a petition for review.
(A) A petition for review shall be filed with the commissioner
within 10 calendar days of the decision of the board of trustees denying
the request being first communicated to the requestor or requestor's
counsel, whichever occurs first. The petition for review shall be
made in accordance with §157.1073(c) of this title (Relating
to Hearings Brought Under Texas Education Code, §7.057) and may
include a request for expedited review.
(B) The district's answer and local record shall comply
with §157.1052(b) and (c) of this title (relating to Answers)
and §157.1073(d) of this title and shall be filed with the commissioner
within 10 calendar days of the school district receiving notification
from the commissioner of the appeal.
(C) The procedures specified in §§157.1059;
157.1061; and 157.1073(e)-(h), (j), and (k) of this title apply to
a case brought to the commissioner under this section.
(7) A request for expedited review is governed by the
following.
(A) The expedited review process is designed to allow
a requestor to promptly receive a preliminary judgment from the commissioner
as to a decision to deny a request for the installation of cameras
or a decision to deny a request to release a video while at the same
time respecting the school grievance process. The expedited review
process does not apply to a request to only view a video. Invoking
the expedited review process results in a prompt initial determination.
However, the final commissioner's determination is to be based on
a substantial evidence review of the school district's grievance record.
This allows for a full record to be developed at the school district
level and does not require the requestor and the school district to
make an evidentiary record before the Texas Education Agency (TEA)
in Austin, Texas. Because the requirements of TEC, §7.057, are
met when the school board's decision is heard by the commissioner,
an appeal to district court is allowed under TEC, §7.057(d).
TEC, §29.022, does not by itself allow an appeal to district
court.
(B) A school district, parent, staff member, or administrator
may request an expedited review. Any request for an expedited review
shall include the names, telephone numbers, and addresses of all interested
parties to the request. "Interested parties" are all persons who brought
the grievance, all persons who have testified or provided written
statements as part of the grievance process, and the school district.
The request for expedited review shall specify whether the school
district denied a request for the placement of a video camera or the
school district denied a request to release a video and briefly describe
why that decision is either correct or incorrect.
(C) A request for expedited review shall be filed with
the commissioner no earlier than 14 business days after a request
for placement of a video camera or a request to release a video is
administratively denied under TEC, §29.022(i) or (l)(2), and
no later than the fifth business day after a school board resolves
a grievance as to a request for placement of a video camera or a request
to release a video. A request for expedited review shall be filed
with the commissioner electronically as provided on the division's
website or by U.S. mail, facsimile, hand delivery, or a commercial
delivery service.
(D) Whenever an interested party files a document with
the commissioner, with the exception of the request for expedited
review, the interested party shall send the same document to all other
interested parties by the same method that the document was sent to
the commissioner. Hand-delivery of the document by the next day may
be substituted for service by facsimile delivery.
(E) If a request for expedited review is timely filed,
the commissioner will establish a briefing schedule and will send
to all interested parties a notice that an expedited review has been
filed, which will include relevant statutes and rules. Any interested
party who knows of any additional interested parties who have not
been notified will promptly inform the commissioner in writing.
(F) All briefing shall clearly state the facts relied
upon. Documents relevant to the issues presented may be attached to
a brief. All briefing shall provide the reasons why the commissioner
should or should not grant the request for expedited review. Citations
to statutes, rules, commissioner decisions, and caselaw are important
to identify the legal basis for the claims made.
(G) All interested parties who are in favor of granting
the request for expedited review shall file briefing at the time specified
for the requestor of the expedited review.
(H) All interested parties who are opposed to granting
the request for expedited review shall file briefing at the same time.
(I) Briefing is not limited to the issues specifically
raised in the pleadings in the case. However, no new arguments may
be raised in the reply briefs. Reply briefs may contain new citations
to the record and legal authority as to issues previously raised.
(J) A preliminary judgment shall be issued based on
the briefing of the interested parties. The preliminary judgment will
be sent to the requestor, the school district, and all interested
parties. If it is determined that a school district is not likely
to prevail on the issue of a request for the placement of video cameras
or the issue of a request to view a video under full review, the school
district will fully comply with TEC, §29.022.
(K) After a preliminary judgment is made, a final judgment
will be made in accordance with the procedures set forth in paragraphs
(1)-(5) of this subsection.
(c) Extension of time. A request by a school district
for an extension of time to begin the operation of a video camera
under TEC, §29.022, shall be made and decided using the following
procedures.
(1) Any request by a school district for an extension
of time to begin the operation of a video camera shall be filed with
the commissioner prior to the 45th school business day after a request
to begin operating a video camera is received. However, a school district
should request an extension of time as soon as it determines that
an extension of time should be filed.
(2) A request for an extension of time to begin the
operation of a video camera shall specify why an extension of time
should be granted. The request shall include affidavits supporting
any factual claims made in the request and reference any legal authority
as to why the request should be granted. The request may include a
request for expedited review. The request shall name the individual
who requested the installation of cameras and provide the individual's
address and telephone number. Immediately following the individual's
address and telephone number there shall appear in bold type: "You
have been identified as the individual who requested the operation
of a video camera that is the subject of this request to the commissioner
of education to extend the statutory timeline. You may, but are not
required to, participate in the proceedings before the commissioner
concerning the school district's request for an extension of time.
It is entirely up to you whether and to what extent you wish to participate
in these proceedings. The procedures governing these proceedings are
found at 19 Texas Administrative Code §103.1303(c) and Texas
Education Code, §29.022."
(3) A request for an extension of time to begin the
operation of a video camera shall list the names, telephone numbers,
and addresses of all interested parties to the request. All interested
parties include all parents of students in the classroom or other
special education setting for which a video camera has been requested
and all staff who provided services in a classroom for which a video
camera has been requested.
(4) All documents in a case shall be filed with the
Division of Hearings and Appeals, Texas Education Agency, 1701 North
Congress Avenue, Austin, Texas 78701, facsimile number (512) 475-3662.
Documents shall be filed electronically as provided on the division's
website or by mail, delivery, or facsimile. All documents must be
actually received by the Division of Hearings and Appeals by the date
specified in this section. The mailbox rule does not apply to filings
in a case filed under this subsection. Electronic filing is strongly
encouraged.
(5) All filings in a case shall be sent to the school
district, the individual who initially requested the installation
of the cameras, and all interested parties who have filed a request
to receive documents filed in the case by the same method as the request
is filed with the commissioner. Due to the requirements of the Family
Educational Rights and Privacy Act of 1974, the names, telephone numbers,
and addresses of parents and other publicly identifiable student information
may not be given to the interested parties. The copies of the filings
sent to interested parties shall be redacted to remove all personally
identifiable student information.
(6) Any response to a request for an extension of time
to begin the operation of a video camera shall be filed with the commissioner
by an interested party within 10 calendar days of the filing of the
request. If no response to the request is timely filed, the commissioner
shall issue a final decision within 20 calendar days of the filing
of the request.
(7) A response to a request for an extension of time
to begin the operation of a video camera shall specify why an extension
of time should or should not be granted. The response shall include
affidavits concerning any factual claims made in the request and reference
any legal authority as to why the request should or should not be
granted. The response may include a request for expedited review.
(8) A request for expedited review must be filed with
the commissioner within 10 calendar days of the filing of the request
for an extension of time to begin the operation of a video camera.
If a request for expedited review is made, all interested parties
shall be notified that they have been identified as interested parties
in the request for an extension of time to begin the operation of
a video camera. In particular, the interested parties will be informed
that it is their choice whether to participate in the proceedings
before the commissioner, that it is entirely up to them to determine
to what extent they wish to participate in the proceedings, that the
procedures governing these proceedings are found in this subsection
and TEC, §29.022, and that upon their written request filed with
the commissioner they will be sent all filings in this case.
(9) If a request for an expedited review is not made,
the commissioner shall issue a final decision within 45 calendar days
of the filing of the request for an extension of time to begin the
operation of a video camera, unless the commissioner determines that
an evidentiary hearing would be helpful in deciding the issues raised.
If the commissioner decides to hold an evidentiary hearing, the commissioner
shall establish the timelines and procedures to be used. Whether to
conduct the hearing by telephone or other electronic methods will
be considered.
Cont'd... |
