September 2015 Committee on School Initiatives Item 7
Review of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners
September 10, 2015
COMMITTEE ON SCHOOL INITIATIVES: DISCUSSION
STATE BOARD OF EDUCATION: NO ACTION
SUMMARY: Texas Government Code, §2001.039, establishes a four-year rule review cycle for all state agency rules, including State Board of Education (SBOE) rules. This item presents the review of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners. Subchapter A establishes the procedures for appeals heard by the SBOE regarding administrative penalties for violations of textbook requirements. Subchapter D sets forth the certification criteria for independent hearing examiners who conduct due process termination, nonrenewal, and suspension without pay hearings at the school district level.
STATUTORY AUTHORITY: The statutory authority for the rule review is the Texas Government Code, §2001.039. The statutory authority for 19 TAC Chapter 157, Subchapter A, is the Texas Education Code (TEC), §31.151, and the Texas Government Code, §2001.004. The statutory authority for Subchapter D is the TEC, §21.252.
The Texas Government Code, §2001.039, requires all state agencies to review their rules at least once every four years.
The TEC, §31.151, and the Texas Government Code, §2001.004, authorize the adoption of procedural rules to govern SBOE administrative penalty hearings involving textbook publishers.
The TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners.
BOARD RESPONSE: This item is presented for review and comment.
PREVIOUS BOARD ACTION: The SBOE last adopted the review of 19 TAC Chapter 157, Subchapters A and D, in November 2011, finding that the reasons for initially adopting the rules continued to exist. In January 2012, the SBOE adopted amendments to Subchapter A that prohibited contact between SBOE members and parties to a State Office of Administrative Hearings (SOAH) hearing regarding administrative penalties and clarified when the SBOE would consider a proposal for decision. Subchapter D was also amended to standardize references to "independent hearing examiner" throughout the chapter and update requirements to reflect technological advances.
FUTURE ACTION EXPECTED: The review of 19 TAC Chapter 157, Subchapters A and D, will be presented to the SBOE for adoption at the November 2015 board meeting.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: Chapter 157, Subchapter A, establishes general rules for contested cases regarding administrative penalties for violations of textbook requirements under the Texas Government Code, Chapter 2001, and provides that these contested cases are heard by the SOAH. The SOAH will make findings of fact and conclusions of law and present a proposal for decision to the SBOE for consideration.
Chapter 157, Subchapter D, specifies certification criteria for independent hearing examiners such as license required, experience, continuing education, and annual recertification. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees. The board of trustees reviews the recommendation and votes on it.
Statute still requires the SBOE to provide a hearing prior to imposing a penalty for violation of the TEC, §31.151. Statute still requires the SBOE to establish criteria for the certification of hearing examiners. Therefore, the reasons for initially adopting these provisions continue to exist.
ANTICIPATED REVISIONS TO RULES: No revisions are anticipated at this time. However, as a separate item in this agenda, revisions to 19 TAC Chapter 66, State Adoption and Distribution of Instructional Materials, are being presented for discussion to the Committee of the Full Board. The revisions may include changes to the administrative penalties authorized under the TEC, §31.151, which may generate amendments to Chapter 157, Subchapter A.
RULE REVIEW: The Texas Education Agency (TEA) plans to file the review of 19 TAC Chapter 157, Subchapters A and D, with the Texas Register following the September 2015 SBOE meeting. The TEA will accept comments as to whether the reasons for adopting 19 TAC Chapter 157, Subchapters A and D, continue to exist. The official comment period will begin with publication of the notice of proposed review in the Texas Register.
The filing of the notice of proposed review soliciting comments as to whether the reasons for adoption continue to exist would not preclude any amendments that may be proposed at different dates through a separate rulemaking process.
FISCAL IMPACT: None.
PUBLIC AND STUDENT BENEFIT: The rules in 19 TAC Chapter 157, Subchapter A, establish the procedural steps governing an administrative penalty textbook appeal to the SBOE. The rule in Subchapter D ensures that certified hearing examiners meet minimum experience, licensing, and ethical standards.
PROCEDURAL AND REPORTING IMPLICATIONS: None.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: None.
PUBLIC COMMENTS: None.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: None.
Staff Members Responsible:
Von Byer, General Counsel
Legal Services
Nichole Bunker-Henderson, Deputy General Counsel
Legal Services
Attachments:
I. Statutory Citations (PDF, 29KB)
II. Text of 19 TAC Chapter 157, Hearings and Appeals, Subchapter A, General Provisions for Hearings Before the State Board of Education, and Subchapter D, Independent Hearing Examiners (PDF, 31KB)