Attachment III
Summary of Public Comments and Agency Responses Related to Proposed New 19 TAC Chapter 157, Hearings and Appeals, Subchapter EE, Review by State Office of Administrative Hearings: Certain Accreditation Sanctions
§157.1155, Petition for Review
Comment: Concerning proposed §157.1155, four administrators, a charter school founder, and an individual suggested that subsection (b) be changed to permit amendments to the petition at any time.
Agency Response: The agency disagrees. Texas Education Code (TEC), §39.302(c)(1), mandates an expedited review of the commissioner's decision. The rule does not prohibit the SOAH administrative law judge from accepting amendments to the petition, but imposes a deadline for doing so. Any amendment must be filed within 30 days of the decision. TEC, §39.302(c)(2), requires the administrative law judge (ALJ) to issue a final decision within 30 days of closing the record. These deadlines are necessary in order to provide a final resolution of the districts' accreditation sanctions and statuses well in advance of the start of school the following year.
Comment: Concerning proposed §157.1155(b), a representative of Association of Charter Educators (ACE) stated the rule, as proposed, calls for dismissal of a petition for failing to meet technical pleading requirements and suggested that dismissing a petition for review for failing to meet technical pleading requirements could prevent a fair review of meritorious claims. The commenter questioned the sufficiency of the pleading rule and suggested this should be left to the purview of the ALJ.
Agency Response: The agency disagrees. TEC, §39.302(c)(1), mandates an expedited review of the commissioner's decision. The rule does not prohibit the SOAH ALJ from granting exceptions to the rule, but provides a standard of practice for the ordinary case. The ALJ has discretion to apply the rule as justice requires. The expedited process in the rule is needed in order to provide a final resolution of the district's accreditation sanction and status well in advance of the start of school the following year.
§157.1157, Standard of Review
Comment: Concerning proposed §157.1157(a), four administrators, an individual, two attorneys, a representative of Texas Association of School Boards (TASB), and a charter school founder advocated a "de novo" standard of review for the decisions required by proposed §97.1037.
Agency Response: The agency disagrees. TEC, §39.302, provides that a "challenge to a decision under this section is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code." Subchapter G of the Administrative Procedure Act governs a judicial appeal from a decision under that Act. Within that subchapter, §2001.173, Trial De Novo Review, governs those cases where the "manner of review authorized by law for the decision in a contested case that is the subject of complaint is by trial de novo." The manner of review authorized by TEC, §39.302, is not by trial de novo, but under "the substantial evidence rule." Accordingly, §2001.173 does not apply to this review.
The commissioner of education is a public office established to make decisions in the field of public education, and TEC, Chapter 39, requires the commissioner to make all accreditation decisions. The commissioner may not assign this function to SOAH. Yet under House Bill (HB) 1, the decision of SOAH on a number of the most significant accreditation matters "is final and may not be appealed." See TEC, §39.302(c)(3). This vests an exceptional amount of authority over accreditation matters in an agency without jurisdiction or expertise in public education. The agency must interpret the statute so as to preserve all discretion over accreditation policy in the commissioner, while vesting SOAH with the authority needed to accomplish the purpose of the statute. Because SOAH's review is final and not appealable, all components of a complete accreditation decision must be accomplished by the commissioner in order for it to receive proper review.
Comment: Concerning proposed §157.1157(b), a board of trustees member asked for clarification in the rule concerning the questions that are committed to the commissioner's discretion by TEC, §39.302.
Agency Response: The agency agrees that the questions committed by law to commissioner discretion require further description. As indicated in response to the previous comment, SOAH does not have authority to accredit school districts or impose accreditation sanctions. Section 157.1157(b) reflected this but lacked criteria for distinguishing questions committed to the commissioner's discretion. Because TEC, §39.302, makes the SOAH review final and because such review might otherwise exercise a function assigned to the commissioner, the questions committed to each agency must be clearly stated. In response to public comment, §157.1157(b) was modified to include, but not be limited to, a description of questions committed by law to commissioner discretion.
§157.1157, Standard of Review, and §157.1159, Scope of Review; Additional Evidence
Comment: Concerning proposed §157.1157 and §157.1159, five administrators and an individual asked why the commissioner is rejecting a contested case process for the Chapter 157, Subchapter EE, appeals that permits issues of fact to be tried and decided by the SOAH ALJ. The commenters suggested the contested case proceeding under proposed Chapter 157, Subchapter EE, should permit issues of fact to be tried.
Agency Response: The agency disagrees. TEC, §39.302, provides that a "challenge to a decision under this section is under the substantial evidence rule as provided by Subchapter G, Chapter 2001, Government Code." The defining characteristic of this review is that the reviewing tribunal is prohibited from trying issues of fact. By permitting issues of fact to be tried by the SOAH ALJ, the rule would violate the plain meaning of TEC, §39.302.
The substantial evidence rule is defined by Government Code, Chapter 2001, Subchapter G, §2001.174, Review Under Substantial Evidence Rule or Undefined Scope of Review. This section provides the statutory requirement that if a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion. Government Code, §2001.174, defines stipulations for this provision. This definition is the basis for new §157.1157.
Government Code, Chapter 2001, Subchapter G, §2001.175, Procedures for Review under Substantial Evidence Rule or Undefined Scope of Review, is the section that governs the process for conducting a substantial evidence review of agency decision-making. Government Code, §2001.174 and §2001.175, are primary sources for the language in the adopted rules governing SOAH's review of the commissioner's decision-making under TEC, §39.302. For example, §§157.1157, 157.1159, and 157.1163 are based on these provisions. Section 157.1165 is based on Government Code, §2001.176, Petition Initiating Judicial Review, which is also within Government Code, Chapter 2001, Subchapter G.
The agency finds that new §97.1037 is required by TEC, §39.302. A substantial evidence review of the commissioner's decision requires two steps: a decision by the commissioner under the relevant provision of TEC, Chapter 39, and a review of that decision by SOAH. Section 97.1037 is not the appeals process required by TEC, §39.302. It is the process by which the commissioner makes the decision that is subject to appeal. Because the manner of review is by substantial evidence on the record, the statute implies that the agency must make a record which may be reviewed under the substantial evidence rule. Section 97.1037 is simply the process by which the record of the commissioner's decision is created.
§157.1157, Standard of Review, and §157.1171, Final Decision
Comment: Concerning proposed §157.1157(b), a board of trustees member asked what procedure would apply, under the proposed §157.1157(b) and §157.1171(b), if the SOAH ALJ reverses the commissioner decision for one of the reasons listed in proposed §157.1157(e).
Agency Response: The agency agrees that clarification is needed. The SOAH ALJ does not have statutory authority to make discretionary decisions respecting the public school system. Contested case decisions are normally committed to an agency that has been created by the legislature to make decisions in a specialized, complex, or highly technical field of knowledge. Such decisions are ordinarily reviewed by a process calling, at most, for a proposed decision of the state agency to be recommended by SOAH. Under HB 1, however, the decision of SOAH on a number of highly significant accreditation matters "is final and may not be appealed." See TEC, §39.302(c)(3). But SOAH has no subject matter expertise in the field of knowledge that is the subject of these decisions and is not authorized to make substantive decisions respecting the accreditation of Texas public school districts. This is reflected in the legislative direction that the appeal to SOAH be by substantial evidence review.
The authority of the SOAH is limited to reviewing the facts and law on which the commissioner has based an accreditation decision subject to review. If those facts are in error, or the commissioner misapplied the law, the SOAH ALJ must remand the case back to the commissioner for entry of an appropriate accreditation status or sanction decision.
Section 157.1157(b), as proposed, reflected the fact that SOAH does not have authority to accredit school districts or impose accreditation sanctions. However, the proposed rule lacked a procedural mechanism for accommodating the statutory authority of the commissioner in the event that an error is found under proposed §157.1157(e). In the ordinary case, this interest is accommodated sufficiently by the procedures governing agency review of the proposal for decision, including Government Code, §2001.058. However, in view of the fact that §157.1171(b) makes the SOAH decision final, the agency agrees that a process is required for remanding questions committed by law to commissioner discretion. In response to public comment, §157.1157 was modified to supply a process and associated criteria governing remand for further proceedings on questions committed by law to commissioner discretion. Subsection (b) was modified to include, but not be limited to, a description of questions committed by law to commissioner's discretion. Additionally, the language of subsection (e) was revised to provide a procedural mechanism for accommodating the statutory authority of the commissioner in the event an error is found in an order under this section, and subsections (f)-(h) were added to supply a process and associated criteria governing remand for further proceedings on questions committed by law to commissioner discretion.
§157.1159, Scope of Review; Additional Evidence
Comment: Concerning proposed §157.1159(b), a representative of ACE suggested the ALJs are competent enough to decide the appropriateness of the record for review and this proposed rule unnecessarily invades the purview of the ALJ's authority.
Agency Response: The agency disagrees that the rule invades the ALJ's purview. Section 157.1159(b) and §157.1163 are based on Government Code, §2001.175. This is in obedience to TEC, §39.302, which specifically refers to Government Code, Chapter 2001, Subchapter G. Section 2001.175(e) provides that the reviewing tribunal is "confined to the agency record," and §2001.175(b) provides that the agency shall send to the reviewing tribunal "the entire record of the proceeding under review." Nothing in TEC, §39.302, or the Administrative Procedure Act makes it the prerogative of the reviewing tribunal to determine the makeup of the record it reviews. That is the responsibility of the agency from which a substantial evidence appeal is taken.
§157.1165, Enforcement of Decision Pending Review
Comment: Concerning proposed §157.1165, representatives of ACE, TASB, Texas Association of School Administrators (TASA), and Texas School Alliance; six administrators; and two charter school founders suggested that an appeal under proposed Chapter 157, Subchapter EE, should stay a decision by the commissioner regarding a district's accreditation status or sanction under proposed §97.1037. The commenters suggested that actions be postponed until a final appeals decision has been made.
Agency Response: The agency disagrees, for the following reasons.
Section 157.1165 is based on a provision within Government Code, Chapter 2001, Subchapter G, that governs review under the substantial evidence rule. Government Code, §2001.176(b)(3), provides that a petition seeking review under the substantial evidence standard "does not affect the enforcement of an agency decision." The same provision provides that "the filing of the petition vacates a state agency decision for which trial de novo is the manner of review authorized by law." Since TEC, §39.302(b), requires the substantial evidence standard of review, and precludes review by trial de novo, an appeal under that section does not stay or affect the enforcement of the decision under review.
Section 157.1165 is not only required by TEC, §39.302, it is required by the practical exigencies of the system established by HB 1. For example, TEC, §39.1327(d), provides, "The district must execute a contract with an approved provider and relinquish control of the campus before January 1 of the school year." Ratings appeals mandated by TEC, §39.301, may not be completed until early November. It is simply not possible for the district to negotiate a contract with an alternative management provider and take all the other necessary steps to plan its relinquishment of control by January 1, unless it does so in parallel with the appeal afforded by TEC, §39.302.
The agency presumes the legislature was aware that a ratings appeal under TEC, §39.301, and a sanctions appeal under TEC, §39.302, must run concurrently with the steps required by TEC, §39.1327, and other sanctions. The legislature intended an appealing district to take active and effective steps to implement the decision of the commissioner even while it pursues a substantial evidence review of it. This principle is reflected in §157.1165.
§157.1169, Conduct of Review During a Ratings Appeal
Comment: Concerning proposed §157.1169, four administrators, two charter school founders, and a representative of ACE suggested that an appeal of a rating under TEC, §39.301, should stay proceedings by the SOAH under TEC, §39.302. The commenters suggested a commissioner's decision should not be deemed final until all underpinnings for the decision are valid and uncontested.
Agency Response: The agency disagrees. Section 157.1169 permits the commissioner to move forward with accreditation and sanction decisions that must be determined so that the district may begin planning and implementation for the coming school year. Conducting the SOAH appeal of a proposed sanction is readily accomplished via a presumption that the rating will stay in place. Where this presumption is not valid, the rule provides for supplementing the record with new ratings information. After weighing the costs and benefits to the school children of Texas, the commissioner has determined that a system that permits the appeal to go forward using this procedure provides the greatest economy and efficiency in most cases. Where the circumstances of a particular case indicate otherwise, the rule provides that the commissioner may withdraw the decision or request that the appeal be abated.
§157.1171, Final Decision
Comment: Concerning proposed §157.1171(a)(3), a board of trustees member suggested that, where the appeal in question is one from a decision to close the district under proposed §157.1151(a)(3), the SOAH ALJ may have the authority to assign a different accreditation status, and asked for clarification on how the status can be changed.
Agency Response: The agency disagrees. The authority of the SOAH ALJ is limited to reviewing the facts and law on which the commissioner has based an accreditation-related decision. If those facts are in error, or the commissioner misapplied the law, the SOAH ALJ must remand the case back to the commissioner for entry of an appropriate accreditation status or sanction. The SOAH does not have authority to accredit school districts.
Comment: Concerning proposed §157.1171(b), four administrators, a charter school founder, and an individual asked why the commissioner is not allowing the normal judicial appeal under Government Code, §2001.171, from decisions of the ALJ under proposed §157.1171.
Agency Response: The agency disagrees. The commissioner is not authorized by TEC, §39.302, to adopt such a rule. TEC, §39.302(c)(3), specifically provides that the decision of the ALJ is final and "may not be appealed." This provision is more recent and more specific to these proceedings than Government Code, §2001.171, and so supersedes it.
§157.1173, Application to Charter Schools
Comment: Concerning proposed §157.1173(b), a legislator, a charter school chief executive officer (CEO) and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a charter school, and an individual suggested that proposed §157.1173(b) exceeds the agency's authority.
Agency Response: The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 expressly provides that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c), as added by HB 1, directs the commissioner to establish specific requirements for automatic revocation or modification of the charter of an open-enrollment charter school if closure of the charter school is ordered. The corresponding language in §157.1173(a) provides for automatic revocation or modification of the charter. TEC, §39.1321(d), as added by HB 1, further specifies that an open-enrollment charter school is not entitled to an additional hearing for sanctions imposed under procedures provided by TEC, Chapter 12, Subchapter D. The corresponding language in §157.1173(b) implements this statutory specification. Additionally, the response to comments on §97.1037(g)(2) also provides an analysis of statutory language and its alignment to the language included in commissioner's rules. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.
Comment: Concerning proposed §157.1173(b), a legislator, charter CEO and founder, five administrators, a charter school founder, a representative of ACE, a superintendent of a school, and an individual suggested that proposed §157.1173(b) implements a bill that failed to pass the Texas Legislature.
Agency Response: The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 enacted new TEC, §39.1321, which is the basis for proposed §157.1173 and §97.1037(g). This statute clearly states that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. TEC, §39.1321(c) and (d), expressly direct the commissioner to adopt the rule text as provided in §157.1173. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.
Comment: Concerning proposed §157.1173(a)(1) and (2), a representative of ACE noted that the timing of an automatic revocation or modification under proposed §157.1173(a)(1) or (2) could be disruptive to students, parents, and teachers of the district and suggested that a uniform timeline be set to avoid this.
Agency Response: The agency disagrees. The factors identified by the commenter must be considered by the commissioner in issuing a final order under §97.1037(f). It is not possible to fix a general rule that will meet the exigencies of every imaginable set of circumstances that comes for decision, so the effective date of the decision should be established through the record review process. The comment also suggests that §157.1173(a)(1) and (2) be amended to avoid possible misinterpretation. The agency finds the rule as proposed is clear. The effective date of a decision that is automatically effective is the date on which the decision of the commissioner is affirmed by SOAH. In the context of the subchapter as a whole, §157.1173(a) can be given no other reasonable construction.
Comment: Concerning proposed §157.1173(b), a legislator, a charter CEO and founder, five administrators, and a charter school founder suggested that proposed §157.1173(b) violates the procedural due process rights of charter holders.
Agency Response: The agency disagrees. The 79th Texas Legislature passed HB 1 in its Third Called Special Session, on May 15, 2006. HB 1 provides that once specific accreditation sanctions have been duly imposed under TEC, Chapter 39, specific adverse action under TEC, §12.115, is both mandatory and automatic. There is no further hearing provided or permitted. The requirements of procedural due process with respect to legislative enactments are quite different from those that apply to case-by-case application of the law to individual circumstances. A charter holder that did not agree to be bound by the change to its contract made by the 79th Texas Legislature was required to repudiate that contract by refusing to accept additional funding under the new law. See TEC, §12.1071(a). The agency must implement the statute enacted by the Texas Legislature. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.
General Comments
Comment: A CEO and founder of a charter school asked that the agency carefully consider the negative impact that the proposed rules under TEC, Chapter 39, will have on drop-out recovery charter schools. The commenter stated the best and most experienced minds remind us of the need to overhaul the state accountability system to recognize and reward these special schools, and the proposed rules as a group ignore the promise that adverse action against the charter contract will consider the "best interest of the students" under TEC, §12.115(b). None of the proposed rules for adoption under Title 19, Texas Administrative Code Chapter 97, Subchapter DD, or Chapter 157, Subchapter EE, give any weight to this interest; it is not even mentioned. TEC, Chapter 12, specifically mandates consideration of this factor when applying accountability sanctions to charters under TEC, Chapter 12. The commenter strongly urged that these errors and oversights be corrected, and that the adoption of the rules be delayed until the next legislative session to permit the legislature the opportunity to correct accountability to reflect learning growth.
Agency Response: TEC, §39.1321, provides that TEC, §12.115(b), has no applicability to an accountability sanction under Chapter 39. However, the accountability standards established by the commissioner under TEC, Chapter 39, do take into consideration the best interests of the students. It is in the best interests of its students that each public school meets the minimum state standards. These substantive standards are not found in either Chapter 97, Subchapter DD, or Chapter 157, Subchapter EE, because those provisions deal exclusively with the process. The substantive standards are adopted at Chapter 97, Subchapter EE, which comprises the commissioner's determination on the best interest of the state's students with respect to each of the criteria set or authorized to be set by statute. However, in response to this and other comments, references to charter schools in 19 TAC §97.1051, Definitions, and §97.1053, Purpose, have been removed, leaving those matters to be determined by statute.
Comment: Two attorneys asked about the process regarding formal appeals as described in the Accountability Manual, and stated that the proposed rules do not appear to take into account the requirements described under TEC, §39.301, to develop rules pertaining to a review committee. The attorneys further stated that this review is in lieu of the formal appeals process via SOAH or the record review and would ideally be met through the development of rules at the same time as those described under TEC, §39.302. Additionally, the attorneys stated the rules called for by other provisions of TEC, Chapter 39, do not appear to have been developed. The attorneys suggested it would be helpful if all rules were developed at the same time in order for a comprehensive review to take place.
Agency Response: The agency disagrees. The rule applicable to an appeal under TEC, §39.301, has previously been adopted under 19 TAC Chapter 97, Subchapter AA, §97.1001, and is not a part of this adoption. Section 97.1037 is designed to meet the requirements of TEC, §39.302, which applies to different decisions under TEC, Chapter 39, and imposes different requirements.
Comment: Two attorneys stated that the distinctions between the review process for individuals accused of violating the rules or laws and the process for districts is confusing and appears to be duplicative.
Agency Response: The agency disagrees. In all instances, the current and proposed rules use the term "person" to include a district, and the term "district" to include a charter holder. The interpretation of the word "person," as found in TEC, §39.076, is governed by the Code Construction Act at Government Code, §311.005(2). That Act defines the term "person" as follows: "Person" includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. When the Legislature used the term "person" in TEC, Chapter 39, without assigning it a different meaning, it assigned the term the meaning found in the Code Construction Act.
No further definitional rule is required for the term "person" to acquire the meaning assigned by law. Nevertheless, since readability and ease of use is an important goal in the agency's rulemaking, 19 TAC Chapter 97, Subchapter EE, §97.1051, was modified to include a definition for "person." Clarification was also added to §97.1051 that the definitions found in that subchapter also apply to 19 TAC Chapter 97, Subchapter DD.
Comment: Two attorneys requested that the comment period be expanded to allow for additional time and input.
Agency Response: The agency agrees. The public comment period was extended through August 20, 2007.
For additional information, email rules@tea.state.tx.us.