| (a) Applicability. This section shall apply to all
hearings under the Texas Education Code (TEC), Chapter 21, Subchapter
G. To the extent that this section conflicts with any other sections
governing hearings before the commissioner, this section shall prevail.
(b) Standard of review. All hearings under this section
shall be decided upon a substantial evidence review of the record
created before an independent hearing examiner or the board of trustees
except that the administrative law judge may take evidence of procedural
irregularities that are not reflected in the local record that occurred
at a hearing before an independent hearing examiner. In a request
for an evidentiary hearing, a party shall identify the specific defect
and its claimed effect on the decision of the board of trustees or
board subcommittee. After such evidentiary hearing, the commissioner
may:
(1) remand the case to the board of trustees with instructions;
(2) reverse the decision of the board of trustees;
or
(3) decide the case on the merits if the commissioner
finds that a procedural irregularity occurred but finds that the procedural
irregularity was harmless.
(c) Petition for review. A teacher wishing to appeal
the decision of a board of trustees or board subcommittee must file
with the commissioner or the agency's division responsible for hearings
and appeals a petition for review not later than the 20th day after
the date the board of trustees or the board subcommittee announces
its decision under TEC, §21.259, or the board notifies the teacher
in writing of its decision not to renew the teacher's contract under
TEC, §21.208. Failure to timely file a petition for review will
result in the dismissal of the hearing. A petition for review may
not be amended or supplemented after the deadline for filing a petition
for review. A petition for review shall contain the following in numbered
paragraphs:
(1) a description of the challenged ruling;
(2) the date of the challenged ruling;
(3) a precise description of the action the teacher
wants the commissioner to take on the teacher's behalf;
(4) a statement of the jurisdiction and the legal basis
of the claim;
(5) the name, mailing address, telephone number of
the teacher's party representative during business hours, email address,
and facsimile number, if any; and
(6) the name, mailing address, business telephone number
of the school district's representative, email address, and facsimile
number, if any.
(d) Filing of local record. A school district must
file the record of the proceedings before an independent hearing examiner
or the board of trustees not later than the 20th day after the date
the petition for review is filed. All allegations which require the
record for resolution will be deemed against the school district,
if the school district fails to timely file the record of the proceedings.
If a school district chooses to file an answer, the answer must be
filed not later than the 20th day after the date the petition for
review is filed or it will be struck as being untimely filed.
(1) The record of the proceedings before an independent
hearing examiner or the board of trustees that is filed by the school
district shall be considered complete and accurate and shall be admitted
into evidence for all purposes unless the teacher files objections
to the record within seven days after the date of filing. The administrative
law judge may conduct a hearing for receiving evidence relevant to
such a challenge to the record if it appears that the matter in dispute
is material to the outcome of the hearing.
(2) The school district shall notify the teacher in
writing when the record of the proceedings before the independent
hearing examiner or the board of trustees is prepared and make the
record available for inspection. A copy of the record shall be provided
to the teacher at a reasonable charge upon request.
(e) Local record. The record of the proceedings before
the independent hearing examiner or the board of trustees shall include:
(1) the transcripts of proceedings at the local level;
(2) all admitted evidence;
(3) all offers of proof;
(4) all written pleadings, motions, and intermediate
rulings;
(5) a description of all matters officially noticed;
(6) if applicable, the recommendation of the independent
hearing examiner;
(7) the transcript of the oral argument before the
board of trustees or the board subcommittee;
(8) the decision of the board of trustees or the board
subcommittee; and
(9) if applicable, the board of trustees' or the board
subcommittee's written reasons for changing the recommendation of
the independent hearing examiner.
(f) Authority of administrative law judge. The administrative
law judge has the same authority as to the conduct of the hearing
and discovery as does an independent hearing examiner under TEC, Chapter
21, Subchapter F. Due to the expedited nature of the hearing before
the commissioner, in a hearing where discovery may be taken, the administrative
law judge shall establish discovery timelines as justice requires.
(g) Motions. All motions requiring a ruling must contain
a certificate of conference asserting that the movant has conferred
with the opposing party representative and has or has not obtained
agreement with the motion. If no conference was conducted, the movant
shall state the reasons, amounting to good cause, why the conference
was not held. All motions requiring a certificate of conference will
be denied without the requirement of a response if the moving party
fails to confer with the opposing party as required.
(h) Motions without a conference. Any motion for which
a conference was not held, when the movant alleges there was good
cause not to hold a conference, must be responded to within three
days unless the administrative law judge specifies a shorter time
to respond. Failure to timely respond will result in a presumption
that the motion is unopposed.
(i) Nonrenewal hearings without an independent hearing
examiner. In a hearing involving the nonrenewal of a term contract
that was not heard by an independent hearing examiner, if no fact
findings were made, the commissioner will determine whether the decision
is supported by substantial evidence by judging whether there is substantial
evidence to support the reasons for proposed nonrenewal.
(j) Request for rehearing. Not later than the 20th
day after the date the party or the party representative receives
notice of the commissioner's decision under TEC, §21.304, a party
may file a request for rehearing. A request for rehearing is not required
for a party to appeal the commissioner's decision under TEC, §21.307.
A request for rehearing is denied by operation of law if the commissioner
does not issue an order before the 45th day after the date the party
or the party's representative receives notice of the commissioner's
decision.
(k) Motions for summary judgment. Motions for summary
judgment are not permitted.
(l) Mailbox rule for filings. The mailbox rule does
not apply to filings under this section.
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| Source Note: The provisions of this §157.1072 adopted to be effective July 20, 2004, 29 TexReg 6893; amended to be effective May 28, 2012, 37 TexReg 3829; amended to be effective January 10, 2023, 48 TexReg 49 |
