Adoption of Review of and Proposed Amendments to 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
(Adoption of Review)
(First Reading and Filing Authorization of Amendment)
November 18, 2011
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: 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 adoption of 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. This item also presents for first reading and filing authorization proposed amendments to 19 TAC Chapter 157, Subchapters A and D, that would prohibit parties to a contested case before the SBOE from communicating with board members during the pendency of the case, address technological advances, and standardize references to independent hearing examiners.
STATUTORY AUTHORITY: The statutory authority for the rule review is Texas Government Code, §2001.039. The statutory authority for 19 TAC Chapter 157, Subchapter A, is Texas Education Code (TEC), §31.151, and Texas Government Code, §2001.004. The statutory authority for Subchapter D is TEC, §21.252.
EFFECTIVE DATE: The proposed effective date of the proposed amendments to 19 TAC Chapter 157, Subchapters A and D, would be 20 days after filing as adopted with the Texas Register in order to implement the latest policy in a timely manner. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2012-2013 school year.
PREVIOUS BOARD ACTION: The SBOE last adopted the review of 19 TAC Chapter 157, Subchapters A and D, in January 2008, finding that the reasons for initially adopting the rules continue to exist. In response to the review, §157.41, Certification Criteria for Independent Hearing Examiners, was amended effective April 27, 2008. The review of 19 TAC Chapter 157, Subchapters A and D, was presented to the Committee on School Initiatives for discussion in September 2011.
BACKGROUND INFORMATION AND SIGNIFICANT ISSUES: TEC, §31.151, and Texas Government Code, §2001.004, authorized the adoption of procedural rules to govern SBOE administrative penalty hearings involving publishers of instructional materials. Chapter 157, Subchapter A, establishes general rules for contested cases under the Texas Government Code, Chapter 2001, and provides that these contested cases are heard by the State Office of Administrative Hearings (SOAH). The SOAH will make findings of fact and conclusions of law and present a proposal for decision to the SBOE for consideration. An amendment to §157.2, Request for Hearing; Transfer to State Office of Administrative Hearings, is proposed that would ensure the parties to the SOAH hearing do not communicate with board members during the pendency of the hearing process. An amendment is also proposed to §157.3, Board Consideration and Adoption of Proposal for Decision, that would clarify when the SBOE will consider a proposal for decision.
TEC, §21.252(a), requires the SBOE to establish certification criteria for independent hearing examiners. Chapter 157, Subchapter D, specifies certification criteria such as license required, experience, continuing education, and annual recertification for independent hearing examiners. 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 the recommendation. An amendment to §157.41, Certification Criteria for Independent Hearing Examiners, is proposed that would address technological advances and standardize references to independent hearing examiners.
RULE REVIEW: The Texas Education Agency (TEA) filed the notice of proposed review of 19 TAC Chapter 157, Subchapters A and D, with the Texas Register following the September 2011 SBOE meeting. If authorized by the SBOE, the TEA will file the notice of adopted review with the Texas Register following the November 2011 SBOE meeting. The notice of adopted review will state that the SBOE finds the reasons for adopting 19 TAC Chapter 157, Subchapters A and D, continue to exist. Any public comments received during the review of 19 TAC Chapter 157, Subchapters A and D, will also be filed.
The filing of the notice of adopted review stating that 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: The TEA has determined that there are no fiscal implications to persons or entities required to comply with the proposed rule action. In addition, there is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.
PUBLIC AND STUDENT BENEFIT: The rules in 19 TAC Chapter 157, Subchapter A, establish the procedural steps governing an administrative penalty instructional materials appeal to the SBOE. The rule in Subchapter D ensures that independent hearing examiners meet minimum experience, licensing, and ethical standards.
PROCEDURAL AND REPORTING IMPLICATIONS: The proposed amendments would have no new procedural and reporting requirements.
LOCALLY MAINTAINED PAPERWORK REQUIREMENTS: The proposed amendments would have no new locally maintained paperwork requirements.
PUBLIC COMMENTS: Following the September 2011 SBOE meeting, notice of the proposed review of 19 TAC Chapter 157, Subchapters A and D, was filed with the Texas Register initiating the official public comment period for the review. At the time this item was prepared, no comments had been received regarding this review. Any public comments received will be provided to the SBOE during the November 2011 meeting.
The official public comment period on the proposed amendments to 19 TAC Chapter 157, Subchapters A and D, will begin when the amendments are published as proposed in the Texas Register.
ALTERNATIVES: None.
OTHER COMMENTS AND RELATED ISSUES: A request for a public hearing on the proposal submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register.
COMMISSIONER'S RECOMMENDATION: I recommend that the State Board of Education:
Adopt 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; and
Approve for first reading and filing authorization the proposed amendments to 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.
Respectfully submitted,
Robert Scott
Commissioner of Education
Staff Members Responsible:
David Anderson, General Counsel
Legal Services
Joan Howard Allen, Deputy General Counsel
Legal Services
Attachments:
I. Statutory Citations
II. Text of Current 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
III. Text of Proposed Amendments to 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