SECTION 157.1073. Hearings Brought Under Texas Education Code, §7.057

(a) Applicability. This section shall apply to all hearings brought under Texas Education Code (TEC), 7.057. To the extent that this section conflicts with any other section governing hearings before the commissioner, the requirements of this section shall prevail.

(b) Jurisdiction. The commissioner has jurisdiction of allegations that a person is aggrieved by:

(1) the school laws of the state; or

(2) the actions or decisions of any school district board of trustees that violate:

(A) the school laws of the state; or

(B) a provision of a written employment contract between the school district and a school district employee, if a violation causes or would cause monetary harm to the employee.

(c) Petition for review. In a hearing brought against a school district, a petition for review shall contain the following:

(1) a description of the challenged ruling, action, or failure to act;

(2) the date of the challenged ruling, action, or failure to act;

(3) a precise description of the action the petitioner wants the commissioner to take on the petitioner's behalf;

(4) a statement of jurisdiction and the legal basis for the claim;

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

(6) the name, mailing address, and business telephone number of respondent or respondent's representative, and facsimile number, if any.

(d) Local record. It is the responsibility of the school district to make and preserve the records of the proceedings before the board of trustees. If the school district fails to create and preserve the record without good cause, all substantial evidence issues that require missing portions of the record for resolution shall be deemed against the school district. The record shall include:

(1) a tape recording or a transcript of the hearing at the local level. If a tape recording is used:

(A) the tape recording must be complete, audible, and clear; and

(B) each speaker must be clearly identified;

(2) all evidence admitted;

(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 decision of the hearing examiner;

(7) a tape recording or transcript of the oral argument before the board of trustees; and

(8) the decision of the board of trustees.

(e) Filing of the local record; objection to the record. In all hearings filed against a school district, the school district must file the local record with its answer. The school district shall notify the petitioner in writing when the local record is prepared and make the record available to the petitioner for inspection. A copy of the local record shall be provided to the petitioner for a reasonable charge upon request. In all hearings filed against a school district, the record before the commissioner shall be considered complete and accurate and shall be admitted into evidence for all purposes, unless within 30 days of the date of filing the record, the petitioner files objections to the record that specifically set forth the items that are relevant and material and have been erroneously omitted for the record or portions of the record that are relevant and material but have been inaccurately transcribed. The administrative law judge shall conduct a hearing to receive evidence relevant to the challenge to the record if it appears that the matter in dispute is material to the outcome of the hearing.

(f) Supplementation of the local record. In all hearings filed against a school district, the commissioner's decision shall be based on a review of the local record. The administrative law judge may, on the motion of either party, order that the record be reopened and remanded to the district to supplement the transcript or tape recording if it appears that the party has evidence to offer that is material, relevant, or not unduly repetitious that the party, for good cause, was unable to adduce at the local hearing. Good cause for failure to secure the testimony of a witness may be demonstrated by:

(1) a clear and unambiguous communication to the witness of the party's intention to call the witness at the hearing;

(2) reasonable notice to the witness of the date, time, and place of the board meeting at which the testimony will be required;

(3) such reasonable follow-up measures as an ordinary prudent person would exercise to secure the attendance of a material witness at a hearing before the board of trustees; and

(4) if the witness is an employee of the district, the district shall produce the witness if reasonable notice is given to the superintendent of the party's intention to call the witness.

(g) Oral argument. Upon either party's request, the administrative law judge may afford both parties the opportunity to file briefs and present oral argument concerning the merits of the hearing.

(h) Standard of review in hearings against a school district. If no findings of fact are made by the board of trustees, the commissioner shall determine whether the decision is supported by substantial evidence by judging whether any permissible findings of fact support the board's decision. In all hearings against a school district, the commissioner may not substitute his or her judgment for the judgment of the school district on the weight of the evidence questions committed to the discretion of the board of trustees but:

(1) may affirm the decision of the board of trustees in whole or in part; and

(2) shall reverse or remand the case for further hearings if substantial rights of the petitioner have been prejudiced because the decision of the board of trustees is:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the statutory authority of the board of trustees;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.

(i) Standard of review in hearings not against a school district. In all hearings not against a school district, the commissioner's decision shall be based upon a record developed before the commissioner, and the standard of review shall be preponderance of the evidence.

(j) Motion for summary judgment. A motion for summary judgment may not be filed in a hearing that is reviewed under the substantial evidence standard without obtaining leave of the administrative law judge.

(k) Administrative Procedure Act adopted. This section adopts for all purposes the provisions of the Administrative Procedure Act, Texas Government Code, Chapter 2001.

Source Note: The provisions of this §157.1073 adopted to be effective July 20, 2004, 29 TexReg 6893