SECTION 103.1303. Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings

(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 [phone]. 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.

(10) If a request for expedited review is made, the following procedures shall be followed.

(A) Any reply by the school district to any response to the request shall be filed with the commissioner within 25 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.

(B) A preliminary judgment shall be made by the commissioner within 35 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.

(C) Any interested party or the school district may file objections to the preliminary judgment within 40 calendar days of the filing of the request for an extension of time to begin the operation of a video camera.

(D) Any reply to an objection to a preliminary judgment must be filed within 45 calendar days of the filing of a request for an extension of time to begin the operation of a video camera.

(E) The commissioner shall issue a final decision within 55 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.

(11) In making either a preliminary judgment or a final judgment under this subsection, the commissioner will consider whether granting the requested extension is reasonable considering all factors, including contracting statutes, architectural and structural issues, and the difference in costs to the district if a moderate extension of time is granted.

(12) A commissioner's final decision under this subsection is not subject to appeal.

Source Note: The provisions of this §103.1303 adopted to be effective January 31, 2019, 44 TexReg 417; amended to be effective January 22, 2023, 48 TexReg 212