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DAN MORALES
 .ATT”RSEY
        GENERAL
                                       September
                                               3,1993




      Honorable 0. H. “Ike” Harris                  Opinion No. DM-25 1
      Chair
      State Affairs                                 Re: Whether a school district’s board of
      Texas State Senate                            trustees may conduct termination hearings of a
      P.O. Box 12068                                teacher in executive session when a teacher
      Austin, Texas 78711                           specifically requests a public hearing (RQ-563)

      Dear senator Harris:

               You have requested our opinion regardmg whether a school district’s board of
      trustees (the “board”) may conduct a termination hearing of a teacher in executive session
      in those circumstances involving sexual harassment of students when the teacher
      specilically requests that the hearing be open to the public. You are concerned that
      students who may be required to testily against the teacher may be “subject to public
      scrutiny, embarrassment and ridicule.” You contend that in order to protect the best
      interests of children a school district should not require public testimony by student
      witnesses in these circumstances. We do not believe a school board may conduct a
      termination hearing in executive session over the teacher’s objection.

              Pursuant to section 13.112 of the Texas Education Code, a teacher may request a
      public hearing on the proposed termination of his contract.’ Section 13.112 provides in
      relevant part:

                      (a) If, upon written notification of the proposed action, the
                 teacher desires to contest the same, he shall not@ the board of
                 trustees in writing within 10 days after the date of receipt by him of
                 the official notice above prescribed, of his desire to be heard, and he
                 shall be given a public hearing if he wishes or if the board of
                 trustees determines that a public hearing is necessary in the public
                 interest.

                      . . .




             bha~~ Bill 7 repeals,inter dia, chapter 13 of the Educationcode, effective Septmk 1. 1995.
      Ads 1993, 73d Leg., ch. 347, 6,8.33(Z). The cotomissionerof educationis to submitto the legislahue a
      prop04 rwisioo ofthe Edwation Codeprovisionsrepealedby section8.33. Id. $8 8.33.8.34.
Honorable 0. H. “Ike” Harris - Page 2 (DM-25 1)




                (c) Within 10 days atIq request for hearing made by the
           teacher, the board of trustees shall fix a time and place of hearing,
           which shall be held before the proposed action shall be effective.
           Such hearing shall be public unless the teacher requests #rai ii be
           private. Emphasis added.]

In addition, subsection 2(g) of the Open Meetings Act provides:

                Nothing in this act shall be construed to require governmental
           bodies to hold meetings open to the public in cases involving the
           appointment, employment, evaluation, reassignment, duties, disci-
           pline, or dismissal of a public officer or employee or to hear
           complaints or charges against such officer or employee, unless such
           oflcer or employee requests a public hearing.

V.T.C.S. art. 6252-17, 3 2(g) (emphasis added). These laws require that when a teacher
makes an appropriate request for a public hearing, the school district must grant such
request. See James v. Hitchcock Indp. Sch. Dist., 742 S.W.2d 701 (Tex. App.--Houston
[lst Dist.] 1987, writ denied); Corpus Chrisfi Ckzssroom Teachers Rss’n v. Corpus
Chrisli h&p. Sch. Dist., 535 S.W.Zd 429 uex. Civ. App.-Corpus Christi 1976, no writ);
Attorney General Opinion TM-1191 (1990).

         You contend that subjecting a child witness to test@ in an open hearing “would
not be normally permitted in a court of law” because the child would be “protected in
criminal proceedings in which testimony may be given in cwneru to protect the best
interests of the child.” Although you do not provide us with information to suggest that a
teacher may be subject to criminal sanctions, we assume that you are referring to article
38.071 of the Code of Criminal Procedure. Article 38.071 addresses the procedure to be
followed with regard to testimony by closed circuit television or video recording of a child
who is a victim of one of several enumerated offenses under the Penal Code.- A judge has
the discretion to determine that a child is unable to testify at the trial of the offense, taking
into consideration the best interests of the child, the rights of the defendant, and any other
relevant factors. Code Grim. Proc. art. 38.071, $5 1, 4. Moreover, the statute only
applies to a child who is 12 years old or younger. Id. $ 1. Because this statute requires
findings of fact by a judge with regard to criminal procedure in a court of law, we cannot
conclude that such procedure would control a termination hearing required to be public as
requested by the teacher under the Education Code and the Open Meetings Act.




        %ection 39.02 of the Penal Code, entitled“official Oppression,’providesfor criminal sanctions
for sexual harasment hy a public employee, and classities an offense under that section as a Class A
misdemeanor. However,official oppressionis not one of the enumeratedoffense5in attide 38.071 of the
C4KkOfCriminalRocedurc.




                                               p. 1308
Honorable O.H. “Ike” Harris - Page 3         W-25 1)




        Normally, a board may not convene in closed session unless specitically provided
for by law.3 See Attorney General Opiion MW-578 (1982) at 4. Although the Open
Meetings Act provides for an executive session under section 2Cg), the exception doe-s not
apply if the public employee who is the subject of the meeting requests that it be open.
Section 2(g) of the Open Meetings Act and section 13.112 of the Education Code do not
give a school district’s board of trustees the discretion to meet in executive session
because a child may be a participant in any particular proceeding.’ Therefore, a board of
trustees of a school district may not convene in executive session for a termination hearing
of a teacher when the teacher specifically requests that the hearing be open to the public.

                                     SUMMARY

                A board of trustees of a school district may not convene in
           executive session for a termination hearing of a teacher when the
           teacher specifically requests that the hearing be open to the public
           pursuant to section 2(g) of the Open Meetings Act and section
           13.112 ofthe Education Code.




                                                        DAN      MORALES
                                                        Attorney General of Texas




        ‘InMoroles Y.E/h, 840 S.W.Zd519 (Tex. App.-El Paso 1992, wit denied),the El Paso Court
of Appeals held that victims and witnesses had a common-law.privacyinterest that prohibited the
dis&surc of their identities and slaktnents regardingallegations of sexual harassment. However,the
Ellen court applied the common-lawprivacyexceptionto public disclosureunder section 3(a)(l) of the
Texas OpenRecordsAct, id. at 524, a comparableexceptionis not found in the Open MeetingsAct. The
Open RecordaAct does not aulhorizea governmentalbody to condocta meeting in closed session merely
becauseinformationdiswssed in the meetingmay be within ooe of its exceptionsto disclosue. Attomey
GcncralOpinion JM-595(1986) at 4-S.

         4Swtioo 13.112 of the EducationCodedoes give the bard limited disc&on to hold a mcaing
open lo lhc poblic when “apoblic meetingis neceswy [to] the poblic huemst.”



                                            p.   1309
Honorable 0. H. “Ike” Harris - Page 4    (DM-251)




WILL PRYOR
Pii hsistant Attorney General

MARYKELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Loretta DeHay
Assistant Attorney General




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