                                                                                       ACCEPTED
                                                                                  03-14-00629-CV
                                                                                         4570791
                                                                        THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                             3/19/2015 4:31:50 PM
                                                                                JEFFREY D. KYLE
                                                                                           CLERK
                         NO. 03-14-00629-CV

                                                                  FILED IN
                                                           3rd COURT OF APPEALS
                       In The Court Of Appeals                 AUSTIN, TEXAS
                For The Third Judicial District of Texas   3/19/2015 4:31:50 PM
                            Austin, Texas                    JEFFREY D. KYLE
                                                                   Clerk


                     LOS FRESNOS
     CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
    and MICHAEL L. WILLIAMS, Commissioner of Education,
                      State of Texas,
                        Appellants
                             v.
                   JORGE VAZQUEZ,
                         Appellee

On Appeal from the 419th Judicial District Court of Travis County, Texas;
 Cause No. D-1-GN-13-003654; before the Honorable Scott H. Jenkins


                             APPELLEE'S
                               BRIEF


                 BRIM ARNETT & ROBINETT, P.C.
                            Mark Robinett
                       State Bar No. 17083600
                  2525 Wallingwood Drive, Bldg. 14
                         Austin, Texas 78746
                     Telephone: (512) 328-0048
                      Facsimile: (512) 328-4814
                  Email: mrobinett@brimarnett.com

                       Counsel for Jorge Vazquez



              Oral Argument Conditionally Requested
                            TABLE OF CONTENTS
                                                                         Page
Table of Contents                                                          i
Index of Authorities                                                       ii
Statement Regarding Oral Argument                                          1
Summary of the Argument                                                    1
Standard of Review                                                         4
Substantial Evidence                                                       7
Arbitrary and Capricious                                                   9
Argument                                                                  10
      A. The District Offered no Credible Evidence against Mr. Vazquez    10

      B. The Texas Rules of Evidence do have some bearing on the case.... 21

Conclusion..                                                              35
Prayer                                                                    37
Certificate of Compliance                                                 39
Certificate of Service                                                    39
Appendix                                                                 40




                                       i
                           INDEX OF AUTHORITIES

Cases
                                                                               Page
Board of Firemen's Relief & Retirement Fund Trustees of Houston
v. Marks,
   150 Tex. 433, 242 S.W.2d 181, 183 (1951)                                         7

City of El Paso v. Public Utility Commission
   883 S.W.2d 179, (Tex. 1994)                                                      10

Cusson v. Firemen's and Policemen's Civil Service Commission
  524 W.W.2d88, 90 (Tex.Civ.App.—San Antonio 1975, no writ)                         8

Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994)                                      5, 7

Firemen's and Policemen's Civil Service Commission v. Brinkmeyer
   662 S.W.2d 953, 956 (Tex.1984)                                                   8

Gerst v. Goldsbuly
  434 S.W.2d 665, 667 (Tex. 1968)                                                   8

Gerst v. Nixon
  411 S.W.2d 350, 360 n. 8 (Tex.1966)                                           10

Hix v. Tuloso-Midway ISD
   489 S.W.2d 706, 711 (Tex.App.-Corpus Christi 1972-writ rerd, (n.r.e.).... 35

Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989)...................    5

Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin
2000, pet. denied)                                                         5

Railroad Commission v. Shell Oil Co., Inc.
   161 S.W.2d 1022, 1029-30 (Tex. 1942)                                             9

Republic W. Ins. Co. v. State, 985 S.W.2d 698, 701 (Tex. App.--Austin 1999,




                                          ii
Tarrant Appraisal District v. Moore
  845 S.W.2d 820, 823 (Tex. 1993)                                              5, 6

Trapp v. Shell Oil Company
   145 Tex. 323, 198 S.W.2d 424, 436 (1946)                                       8
   198 524 S.W.2d at 440                                                          8

Vitek v. Jones
   445 U.S. 480, 490-91, 100 S. Ct 1254, 1262-63, 63 L. Ed. 2d 552 (1980)... 34

Wolff v. McDonnell
  418 U.S., at 558, 94 S. Ct., at 2976                                          34


Statutes

Tex. Education Code
  §21.206(a) Term Contract Renewal Act                                      3, 24
  Chapter 21, Subchapter E Term Contract Renewal Act                        3, 35
  Chapter 21, Subchapter F                                                     28
  §21.201(c)(3)                                                                 10
  §21.203 206-.207                                                              34
  §21.207 (a)                                                                 3, 24
  §21.207, Subsection (b)                                                      32
  Acts 1981, 67th Leg., p. 2847, ch. 765, §2, eff. Aug. 31, 1981)               6

Government Code

  §2001.001                                                                     .31
  §2001.003                                                                     .31
  §2001.081                                                         23, 25, 29, 31
  §2001.081 (a)                                                                26

Commissioner's Decisions

Anderson v. Jacksonville ISD
  Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997)                       ...6, 15, 23



                                         iii
Carnot v. North East Independent School District
  No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005)                                                           ..23

Dunlap v. Breckenridge ISD
  Docket No. 334-R1-692, pp. 8 (Comm'r Educ. 1995)                                                6, 23
  pp. 8-9                                                                                             6

Gipson v. Ore City ISD
  Docket No. 178-R1-690 (Comm'r Educ. 1992)                                                       6, 15
  p• 3                                                                                               .23

Seifert v. Lingleville ISD
   No. 174-R1a-782, p. 3 (Comm. Educ., Jan. 1983)                                                     4
   p•4                                                                                            11, 15
   Seifert   *00   Ems goo   444   *O.   0...wo   .ea   &Ma   S   4   0 ■   g   ose   COO   OS.     29
                                                                                                  'WO




Weatherwax v. Fort Worth Independent School District




                                                        iv
               STATEMENT REGARDING ORAL ARGUMENT

      Jorge Vazquez, Appellee, does not believe that the issues in this case are

complex enough to justify Oral Argument. What constitutes evidence or substantial

evidence is well-established, in large measure by cases from this very court. There

is no compelling reason to change those concepts, nor is one offered by the

Appellants in this case. The primary basis offered by the Appellants for departing

from a standard that has been consistently applied for more than thirty years is a

statute that, by its own terms, is not applicable to this case.

      The briefs fully and fairly articulate the parties' positions, and Appellee does

not see any issue that requires oral argument to understand.

      However, if this Court grants Oral Argument, Appellee requests the

opportunity to participate.


                        SUMMARY OF THE ARGUMENT

      By now, everyone engaged in the practice of law is familiar with the evils

associated with what is commonly referred to as "judicial activism." Indeed, even a

sizeable number of laypeople are aware that it is not the task of the judicial branch

to create new law. With Texas being a State that elects its judges, virtually every

judicial candidate with advertising funds makes it clear that he or she will not
commit that offense; that he or she will "interpret" the law, not "make" law; that

they will not "legislate from the bench."

      And yet, there is something even worse than judicial activism, as this case

demonstrates. Let's call it "administrative activism": what happens when the

executive branch decides to make new law, as opposed to simply administering the

laws enacted by the legislature.

      Why is this worse than judicial activism?

      First, administrative officials, have not been elected and have not put their

governing philosophy, values, and standards before the electorate. They have never

even promised to show restraint if clothed with the power to determine the rights

of those who are affected by their actions.

      In addition, as a general rule, they do not have legal training that would help

them understand the importance of limiting their power to administering statutes as

written, as opposed to what they would like a statute to say.

      In the present case, the Commissioner of Education went even further than

your ordinary administrative activist by not merely "making" new law, but by

changing existing law that he (in the form of his predecessors) had clearly and

consistently articulated for more than thirty years. In addition, he ran roughshod

over the substantial evidence standard that has been clearly spelled out in countless

decisions by Texas appellate courts.



                                            2
      More specifically, the Commissioner held, for the first time of which

Appellee is aware by any court or administrative body, that hearsay that is objected

to can constitute substantial evidence (even though it is not evidence at all).

      In this case, Mr. Vazquez, a teacher in Los Fresnos ISD was proposed for

contract nonrenewal at the end of the 2012-13 school year in accordance with

§21.206(a) of the Term Contract Nonrenewal Act (TCNA). Tex. Education Code

Chapter 21, Subchapter E.

      He requested a hearing pursuant to §21.207(a) of the Act.

      A hearing was held before the Board of Trustees on June 13, 2013. At the

hearing, the evidence in support of nonrenewing Mr. Vazquez's contract consisted

almost exclusively of an administrator "testifying" to the Board about what

students had told her: which is commonly—actually universally--referred to as

"hearsay."

      No student was called by the administration to tell the Board what he or she

had personally observed.

      The Commissioner, on page 16 of his Decision, states that "[t]he issue of

what hearsay exceptions apply is dispositive in the present case." He specifically

notes "[t]hat the only people who observed what was going on in class were [Mr.

Vazquez] and his students," and Mr. Vazquez denied the allegations against him.




                                           3
      The Commissioner adds that:

      If [Mr. Vazquez] is to be believed his actions would not warrant the
      nonrenewal of his contract. If the students are [to] be believed, [Mr.
      Vazquez's actions do warrant the nonrenewal of his contract.

      The Commissioner then proceeds to declare, incorrectly, that certain new

exceptions to the hearsay rule before state agencies allow blatant hearsay to serve

as "evidence" in a substantial evidence review of a nonrenewal decision by a

school district's board of trustees.

      Further, although Appellant Los Fresnos ISD attempts to argue that Mr.

Vazquez's own statements constitute substantial evidence to support the

nonrenewal of his contract, this is a new argument that cannot be raised for the first

time on appeal. It is also incorrect, for reasons addressed in Mr. Vazquez's

argument.

                             STANDARD OF REVIEW

       The District court correctly reversed the decision of the Commissioner of

Education because: (a) the Commissioner's decision was not supported by

substantial evidence, because the statute does not allow, and never has allowed,

hearsay to serve as substantial evidence; and (b) was arbitrary and capricious.

                               Statutory Construction

       The Commissioner's Decision (p. 16) correctly states that "[t]he issue of

what hearsay exceptions apply is diapositive of the present case. . . . If the students



                                          4
are to be believed, [Mr. Vazquez's] actions warrant the nonrenewal of his

contract." But the only statements by the students are all hearsay. The question,

therefore, is whether the nonrenewal statute authorizes hearsay to serve as

substantial evidence. As this Court has held:

      Statutory construction is a question of law. See Johnson v. City of Fort
      Worth, 774 S.FV.2d 653, 656 (Tex. 1989). This Court reviews a ruling on a
      pure question of law de novo. See Republic W. Ins. Co. v. State, 985 S. W.2d
      698, 701 (Tex. App.--Austin 1999, pet. dism'd w.oj).


Lopez v. Tex. Workers' Comp. Ins. Fund, 11 S.W.3d 490, 494 (Tex. App.--Austin

2000, pet. denied).

      The Commissioner argues that, nevertheless, the Commissioner's

construction of a statute he administers is entitled to deference or great weight.

      This is, indeed, a general rule of thumb. However, what the Commissioner

does not mention is the language of the Texas Supreme Court in Dodd v. Meno,

870 S.W.2d 4, 7 (Tex. 1994):

      As we recently noted in Tarrant Appraisal District v. Moore, 845 S.W.2d
      820, 823 (Tex. 1993): Construction of a statute by the administrative agency
      charged with its enforcement is entitled to serious consideration, so long as
      the construction is reasonable and does not contradict the plain language of
      the statute."

      Indeed, citing this very case, the Supreme Court held , in the No. 1 case cited

by the Commissioner, that:

      the contemporaneous construction of a statute by the administrative agency
      charged with its enforcement is entitled to great weight. Dodd v. Meno, 870

                                           5
      S.W.2d 4, 7 (Tex. 1994); Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820,
      823 (Tex. 1993).

State v. Pub. Util. Comm'n, 883 S.W.2d 190, 196 (Tex. 1994).

      In the present case, the Commissioner's construction of the statute is

unreasonable and contradicts its plain language (i.e., "substantial evidence").

Further, the time for a contemporaneous construction of the statute is long past.

That was done in previous decades in cases that all stand for the proposition that

what is not evidence (e.g., hearsay) cannot support a decision in a substantial

evidence review: Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-9

(Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690 (Comm'r

Educ. 1992).    Anderson v. Jacksonville ISD, Docket No. 142-R1-397, p. 2

(Comm'r Educ. 1997).

      The present case is the first instance, since the Term Contract Nonrenewal

Act was enacted in 1981 in which the Commissioner has announced that hearsay

can serve as substantial evidence. (See Acts 1981, 67th Leg., p. 2847, ch. 765, §2,

eff. Aug. 31, 1981.)

      In short, this Court should give deference (or great weight) to the

Commissioner's contemporaneous and consistent construction of the statute, as

opposed to a johnny-come-lately interpretation that does nothing to further the

purpose of the statute and everything to circumvent it.




                                          6
        And this does not even take into account the normal rationale for giving an

administrative agency's construction "serious consideration": As explained in

Dodd:

        we are not inclined to reverse the Commissioner's reasonable determination
        in an area where he possesses considerable authority and expertise.

870 S.W.2d 4, 7.

        The Commissioner's expertise is not in statutory construction, nor in what

constitutes "evidence" and "substantial evidence." The Court should not give any

deference to an educational administrator's interpretation on these concepts. This is

the sweet spot of the Court's purview. There is nothing the Commissioner of

Education can do or say that will assist the Court in its consideration of what

constitutes hearsay, evidence, or a substantial evidence review (as opposed, for

example, to a decision concerning teacher appraisals or class size limitations).

                                 Substantial Evidence

        To the extent, if any, that substantial evidence is an issue, the principles of a

substantial evidence review are well settled:

              Any difficulty applying the substantial evidence rule in
              cases such as this arises from the dual role the trial court
              must play. On one hand, the court must hear and consider
              evidence to determine whether reasonable support for the
              administrative order exists. On the other hand, the agency
              itself is the primary fact-finding body, and the question to
              be determined by the trial court is strictly one of law.
              Board of Firemen's Relief & Retirement Fund Trustees of
              Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183

                                             7
              (1951). Thus, while the reviewing court is to a certain
              extent a fact-finder, it may not substitute its judgment for
              that of the agency on controverted issues of fact. Trapp v.
              Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424, 436
              (1946). When there is substantial evidence which would
              support either affirmative or negative findings the
              administrative order must stand, notwithstanding the
              agency may have struck a balance with which the court
              might differ. Gerst v. Goldsbury,       434 S.W.2d 665,
              667 (Tex.1968). The trial court may not set aside an
              administrative      order merely because testimony was
              conflicting or disputed or because it did not compel the
              result reached by the agency. Resolution of factual
              conflicts and ambiguities is the province of the
              administrative body and it is the aim of the substantial
              evidence rule to protect that function. The reviewing
              court is concerned only with the reasonableness of the
              administrative order, not its correctness. Cusson v.
              Firemen's and Policemen's Civil Service Commission,
              524 S.W.2d 88, 90 (Tex.Civ.App.---San Antonio 1975,
              no writ).

              The reviewing courts need not consider "incredible,
              perjured, or unreasonable testimony because such
              evidence is not substantial." Trapp v. Shell Oil Company,
              198 S.W.2d at 440. However, the reviewing court may
              go no further than to examine the evidence for these
              infirmities. If there is substantial evidence which
              supports the order, the courts are bound to follow the
              discretion of the administrative body.

Firemen's and Policemen's Civil Service Commission v. Brinkmeyer, 662 S.W. 2d
953, 956 (Tex. 1984).

         Despite these general rules, the reviewing authority is not required to

consider only the evidence of one side without regard to that introduced by the

other:



                                           $
             This [i.e., the substantial evidence rule] does not mean
             that a mere scintilla of evidence      will suffice, nor
             does it mean that the court is bound to select the
             testimony of one side, with absolute blindness to that
             introduced by the other. After all, the court is to render
             justice in the case. The record is to be considered as a
             whole, and it is for the court to determine what
             constitutes substantial evidence. The court is not to
             substitute its discretion for that committed to the
             agency by the Legislature, but is to sustain the agency if
             it is reasonably supported by substantial evidence before
             the court. If the evidence as a whole is such that
             reasonable minds could not have reached the conclusion
             that the agency must have reached in order to justify its
             action, then the order must be set aside.

Railroad Commission v. Shell Oil Co., Inc., 161 S.W.2d 1022, 1029-30 (Tex.

1942). (Emphasis added.). Here, the District Court appropriately found that the

Commissioner's decision must be overturned because reasonable minds could not

have reached the conclusion that Appellee's contract should be nonrenewed based

on the information offered by the District to support that action, which consisted

virtually entirely of hearsay.


                             Arbitrary and Capricious

      The arbitrary and capricious standard is a separate basis, apart from lack of

substantial evidence, for invalidating an administrative action.

             An agency's decision is arbitrary or results from an abuse
             of discretion if the agency: (1) failed to consider a factor
             the legislature directs it to consider; (2) considers an
             irrelevant factor; or (3) weighs only relevant factors that
             the legislature directs it to consider but still reaches a


                                          9
            completely unreasonable result. Gerst v. Nixon, 411
            S.W.2d 350, 360 n. 8 (Tex.1966).

City of El Paso v. Public Utility Commission, 883 S.W.2d 179, (Tex. 1994). Here,

the District Court properly overturned the Commissioner's decision because it

ignored hearsay rules as well as the Texas Education Code provision which

requires that a teacher be allowed to cross examine adverse witnesses. Tex. Educ.

Code § 21.201(c)(3).

                                    ARGUMENT

    A. The District Offered no Credible Evidence against Mr. Vazquez

      Mr. Vazquez was accused by the school district of a number of inappropriate

comments or acts. However, none of the allegations were supported by anything

that would qualify as "evidence."

      The information masquerading as evidence was, almost without exception,

hearsay in the form of written statements from individuals who did not appear at

the hearing to state what they had personally observed or experienced. In their

absence, Mr. Vazquez had no opportunity to cross-examine them to demonstrate

any biases or other credibility problems, to demonstrate that their written

statements were exaggerated, distorted, or taken out of context, or were the result

of being led in the direction of making statements slanted against Mr. Vazquez.




                                        10
          In other words, the hearing was designed by the district to deprive Mr.

Vazquez of a fair opportunity to refute the allegations or minimize their prejudicial

effect.

          The reasons given for the proposed nonrenewal are set forth as follows:

1.        During this school year, students and parents have made complaints of
          inappropriate comments made by you. Students have complained that you
          make them feel uncomfortable.

          This reason is irrelevant. First, the fact that complaints have been made

about a teacher is not listed in the district's nonrenewal policy as a basis for

nonrenewal. Policy DFBB (LOCAL) (A.R. Vol II. at 286-288).

          In addition, if there were a policy that allowed the district to use mere

complaints or allegations as a basis for nonrenewal, as opposed to facts, it would

be arbitrary and capricious and contrary to the purpose for which the TCNA was

enacted. See Seifert v. Lingleville ISD, 174-Rla-782, p. 4 (Comm'r Educ. 1983), in

which a teacher was proposed for nonrenewal based on "community feeling of

incompetence." The Commissioner, in one of the first cases decided under the

Term Contract Nonrenewal Act, wrote as follows as to the purpose of the Act:

                "Community feeling of incompetence" is the only reason
                for nonrenewal of which Petitioner was given written
                notice. It is a reason inconsistent with the purposes of
                the TCNA. Section 21.203(b) of the Act, which requires
                the local board of trustees to establish reasons for
                nonrenewal, has no purpose if not to provide the
                individual teacher with advance notice of what he or she
                must do in order to retain his or her position with the

                                            11
school district. For example, a teacher might be
reasonably required to do such things as prepare lesson
plans; keep proper records; be punctual; be competent;
avoid activities which could impair or diminish the
teacher's effectiveness in the district; and cultivate a
working relationship with parents, the community, and
colleagues. However, a teacher cannot reasonably be
required to control the community's perception of his or
her competence as an instructor.

 A holding to the effect that a school district may
nonrenew a teacher for a reason over which the teacher
has no control would render §21.203 an extremely futile
piece of legislation; the teacher's situation would be only
negligibly improved over the days in which he or she
could be nonrenewed for no reason or any reason, with
the exception, of course, of a reason prohibited by federal
law. A teacher could be nonrenewed for the reason that
"the superintendent (or principal, or one member of the
board of trustees) thinks you are incompetent." As long
as the superintendent (or principal, or one member of the
board of trustees) were to state under oath that, in his or
her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient
evidence to support the board of trustees' nonrenewal
decision on appeal to the Commissioner.

The TCNA does not contemplate such a roundabout
method of nonrenewing a teacher; it was not enacted to
allow the nonrenewal of a competent (or excellent)
teacher based on second hand accounts of the tales of
children which grow more exaggerated with each
retelling. In short, the community's perception of a
teacher's competence is irrelevant. What is relevant is
whether or not the teacher actually is competent and the
evidence pertaining to that issue. "Community feeling of
incompetence," therefore, is not a permissible reason for
nonrenewal and it is unnecessary to decide whether there
was substantial evidence before the Board of Trustees in
support of that reason.

                            12
      By the same token, the teacher has no control over whether someone makes

a complaint against him. That is why the district is required to provide a hearing: to

determine whether the board believes the substance of the complaints after hearing

from those making them and/or others who observed the alleged incidents, taking

into account the witnesses' demeanor, credibility, and answers under cross-

examination, which might negate or minimize the weight given to their testimony.

2.    A parent complained of the showing of a movie that was inappropriate.

      The evidence shows that, on April 10, 2012 of the previous school year

(2011-12), Mr. Vazquez showed some of the movie Burlesque to ninth grade

students without obtaining prior approval. (A.R. Vol Il at 440.) He was advised

that "all videos/movies must be approved by administration" and told that all

movies must be previewed to confirm that the content is appropriate. Id.

      Mr. Vazquez acknowledged that he had shown a few minutes of the movie,

but there were extenuating circumstances. His lesson for the day involved taking

his class to the computer lab. However, after his class had set everything up in the

lab, he was told by the assistant principal that the room was going to be used for

testing. His class returned to his classroom without being able to do the day's

assignment with approximately twenty minutes remaining in the period. (Tr. 126:

14 through 130:14.)




                                          13
      Mr. Vazquez testified that it's "not an uncommon thing in our district or our

high school or at United [ISD] where if something goes—changes, and people

show movies."

      His students stated that they had already seen this particular movie in

another class. He "took for granted it was okay" because it was rated PG-13, and

he was dealing with ninth graders.

      In all, the first 10-15 minutes of the movie were shown.

      This matter was brought to Mr. Vazquez's attention on April 13, 2012.

There is no allegation and no evidence to suggest that, after being told that he

should preview and obtain prior approval before showing a movie, he failed to

follow that directive in any respect.

3.    During the school year, parents have requested that their child be removed
      from your class.

      As with Reason No. 1, the fact that parents have requested that their children

be removed from Mr. Vazquez's class is no basis for nonrenewing a teacher in the

absence of evidence as to why these requests were made and, if for negative

reasons, whether they were supported by evidence.

4.    Students corroborated the incidents. These statements have been previously
provided to you in a Public Information response for information and are
incorporated herein.




                                        14
      No student testified at the hearing to corroborate any incident. Petitioner

objected to all student statements the district offered as being hearsay. (Tr. 25:18

through 26:6; 28:13-24; 30:6-23; 109:18-25; and 159:14 through 160:10.)

      As noted in the Seifert case, at p. 4, the Commissioner has specifically

discouraged blatant hearsay from serving as a basis for nonrenewing a teacher's

contract:

            The TCNA does not contemplate such a roundabout
            method of nonrenewing a teacher; it was not enacted to
            allow the nonrenewal of a competent (or excellent)
            teacher based on second hand accounts of the tales of
            children which grow more exaggerated with each
            retelling.

      Petitioner is, therefore, entitled to have all improperly admitted evidence

disregarded by the Commissioner on appeal. See Dunlap v. Breckenridge ISD,

Docket No. 334-R1-692, pp. 8-9 (Comm'r Educ. 1995); Gipson v. Ore City ISD,

Docket No. 178-R1-690 (Comm'r Educ. 1992). Anderson v. Jacksonville ISD,

Docket No. 142-R1-397, p. 2 (Comm'r Educ. 1997).

5.     You were provided directives memos to address prior inappropriate and
unprofessional interactions with students, parents and colleagues in an effort to
help you remediate your behavior. You were directed to refrain from several of the
behaviors as indicated above. You failed to follow previously provided directives
as indicated and failed to comply with other issues addressed in the memos.

      This reason is flawed in numerous respects:

      (a) Mr. Vazquez was provided with four memos: Exhibits 8, 9, 12, and

13. Numbers 12 and 13 concerned the same incident: showing the movie. Both

                                         15
stated that he should not have shown the movie without prior approval and prior

screening. Both were dated April 13, 2012. Exhibit 12 was signed by the principal

on April 13, 2012, by the Human Resources Director on April 17, 2012, and by the

superintendent on April 18, 2012. Exhibit 13 does not contain any signatures, but

is purportedly from the principal and dated April 13, 2012.

      The Board President signed Mr. Vazquez's contract on May 3, 2012.

      There is no evidence—indeed, no allegation—that the information brought

to Mr. Vazquez's attention and the directives given him in Exhibits 12 and 13

during the previous school year while under a previous contract went unheeded.

There are no allegations of further movie-showing, and Mr. Vazquez, as mentioned

previously, testified that he meticulously followed the directives.

      (b) Exhibit 9, also from the 2011-12 school year, concerned an allegation

in which Mr. Vazquez pretended to videotape a student who was constantly off

task that day in order to get her attention and focus on the lesson. He was directed

to never "lead students to believe that they are being video-taped in a classroom as

a disciplinary or class management technique."

      The student in question did not testify. Mr. Vazquez testified (Tr. 117:10

through 118:21) that what he did prior to this incident was record his students'

presentations in his communications class. The camera on the day in question was

already set up, but there was no tape in it. The student was misbehaving and



                                          16
distracting the rest of the class. She was talking to other students, causing them to

be off task. Everyone was doing their job except a few students around her. He

decided, at first, to move a number of students, not only her, "just to be fair"—i.e.,

so she would not feel singled out. Ultimately, he pretended to record her to see if

that would have any effect on her behavior.

      Mr. Vazquez testified that he was not trying to intimidate or "bully" the

student. He was trying to maintain order so he could do his job and teach the other

students; or, more precisely, all of the students, including her. (Tr. 123:20-124:1.)

      It is appropriate for the administration to advise a teacher that, in its opinion,

this type of corrective behavior is inappropriate and give a directive to not use that

technique in the future. Mr. Vazquez's actions were not, however, a matter clearly

proscribed by any law, regulation, school district policy, or directive prior to this

incident. Nor is it the type of situation that a reasonable teacher would know was

so horrific that it did not need to be specifically prohibited. It was simply a matter

of a teacher attempting to maintain order in what he believed to be a benign way.

      Although there is no actual evidence that the student felt "humiliated" by the

incident (as asserted in Exhibit 9), being corrected by the teacher is, to some

extent, embarrassing and uncomfortable to any misbehaving student--whether it be

by being looked at, directed to stop misbehaving, given a demerit, sent to the

office, assigned after school detention, moved, assigned a seat next to the teacher's



                                          17
desk, or any other technique employed by the teacher. There was no reason for Mr.

Vazquez to believe that pretending to record her would be any more disconcerting

to the student than any of these or however many other techniques teachers have

used since the dawn of time to promote attention to the lesson rather than to a

misbehaving student and her audience.

      It also should be clear that Mr. Vazquez believes that this incident was

blown way out of proportion because the student involved was the daughter of the

board president. (Tr. 99:12-23.)

      Regardless of all other considerations, Mr. Vazquez complied with the

directive he received during the previous school year while under a previous

contract concerning this method of classroom management, whether it was a valid

concern or not, whether he agreed with it or not. He followed his superiors' orders,

plain and simple. There is no evidence to the contrary. (See Tr. 125:12-126:15.)

      (c) Exhibit 8 sets forth a number of complaints the principal says he

received from students. All are hearsay. No student or any witness who

purportedly observed the incidents recounted them at the nonrenewal hearing. Mr.

Vazquez testified that one of the allegations contained a grain of truth: that he had

said something to a student about his manner of dress. The district took the

position that this comment was meant to embarrass the student.




                                         18
      Mr. Vazquez testified that a student came to his desk because the student

was trying to log in and his password was not working. Mr. Vazquez noticed that

the boy was wearing both suspenders and a belt. He did not want other students

making fun of him, so he told the student that belts are not usually worn with

suspenders. He was not trying to hurt the boy; in fact, he was trying to make sure

he did not get made fun of. (Tr. 131:13 through 133:4.)

      Later, the principal told Mr. Vazquez for the first time that the boy had

"issues," and had a hard time dealing with students and other people; i.e., he was

very sensitive.

      There is no valid evidence supporting any allegation that Mr. Vazquez did

anything improper in connection with this incident.

      In sum, there is evidence that Mr. Vazquez received directives. There is no

evidence to support the allegations on which some of the directives were based. On

those where Mr. Vazquez acknowledges that the incident happened (i.e., the

showing of the movie, the pretend videotaping, and the discussion about the

student's manner of dress), the evidence demonstrates that these were not matters

that would justify the serious action of nonrenewal. Further, Mr. Vazquez

complied with all directives he was given once the administration's concerns were

brought to his attention.

6. Your 2013 summative evaluation reflects performance issues and
substantiates that there are issues with the following domains: IV-management and

                                         19
student discipline; V-verbal and nonverbal communications with students; and VII-
operating procedures and requirements.

      In the absence of evidence supporting these ratings, we have the situation

addressed in Seifert and quoted previously:

            A holding to the effect that a school district may
            nonrenew a teacher for a reason over which the teacher
            has no control would render §21.203 an extremely futile
            piece of legislation; the teacher's situation would be only
            negligibly improved over the days in which he or she
            could be nonrenewed for no reason or any reason, with
            the exception, of course, of a reason prohibited by federal
            law. A teacher could be nonrenewed for the reason that
            "the superintendent (or principal, or one member of the
            board of trustees) thinks you are incompetent." As long
            as the superintendent (or principal, or one member of the
            board of trustees) were to state under oath that, in his or
            her opinion, the teacher in question was incompetent, that
            one line of testimony, by itself, could serve as sufficient
            evidence to support the board of trustees' nonrenewal
            decision on appeal to the Commissioner.

            The TCNA does not contemplate such a roundabout
            method of nonrenewing a teacher; it was not enacted to
            allow the nonrenewal of a competent (or excellent)
            teacher based on second hand accounts of the tales of
            children which grow more exaggerated with each
            retelling.

      There is nothing to suggest that the evaluation at issue is based on anything

other than the second hand accounts of tales of children, with no way to gauge

whether they are exaggerated, taken out of context, made up, or the product of

other flaws. This is especially true taking into account Dist. Exh. 5, which

demonstrates that:

                                        20
      (a)    Mr. Vazquez's evaluations have been consistently excellent

throughout his career as a teacher in Los Fresnos ISD, at least prior to the incident

involving the daughter of the school board president; and

      (b)    His final evaluation for the 2012-13 school year contained none of the

negative ratings referred to in the Notice of Proposed Nonrenewal, despite the

incidents that occurred during that school year that the District claims, a year later,

are grounds for ending his employment. If these incidents, indeed, were so bad as

to justify the nonrenewal of Mr. Vazquez's contract more a year later, why was it

not important enough to adversely affect his evaluation at the time?

                           B. The Texas Rules of Evidence

The Defendants' arguments are:

1.    The Board's Procedure allowed hearsay

      The District established its own non-renewal hearing rules and advised

Vazquez that the Rules of Evidence would not control. (LFISD Brief, p. 35-36).

The problem with this "rationale" is that it ignores the issue: i.e., whether the

decision is supported by substantial evidence. The fact that the Board allows non-

evidence to be admitted does not mean that the non-evidence is somehow

magically transformed into actual evidence for the purpose of a substantial

evidence review. The Board could also allow testimony from a psychic or tarot

card reader and consult a Ouija Board or Magic-8 Ball before making its decision.



                                          21
The question in this proceeding would remain whether there is substantial evidence

in the record no matter how many times "It is certain" pops up on the Magic 8-

Ball.

        In short, no matter what nonsensical procedures the Board adopts for its

hearing, those procedures do not make evidence out of something that is not

evidence.

2.      The Board was entitled to ignore the Rules of Evidence

        Los Fresnos ISD, at page 35 of its brief, entitles an entire section of its

argument, "The Rules of Evidence Do Not Apply." Also, the Commissioner, at

page 16 of his brief, writes that the Texas Rules of Evidence do not apply to

nonrenewal hearings.

        Both appellants argue that since the Texas Education Code provides that the

Rules of Evidence apply in termination hearings and nonrenewal hearings before a

certified hearing examiner, we must infer that the legislature did not intend for

those rules to apply in a nonrenewal hearing before a school board.

        This principle can be applied to a certain extent, but not to the extent to

which it was misused at the hearing and before the Commissioner of Education on

appeal in this case.

        While some leeway is afforded in an administrative hearing concerning the

Rules of Evidence, what is not evidence cannot serve as substantial evidence. As



                                            -)2.
noted in Mr. Vazquez's discussion of the Standard of Review as to statutory

construction, the Commissioner has held consistently that "[w]hile the Texas Rules

of Evidence do not apply to local hearings, they do apply when the record is

reviewed on appeal." Dunlap v. Breckenridge ISD, Docket No. 334-R1-692, pp. 8-

9 (Comm'r Educ. 1995); Gipson v. Ore City ISD, Docket No. 178-R1-690

(Comm'r Educ. 1992). Hearsay, properly objected to at the local hearing, is to be

rightfully excluded and cannot support a board's decision. Anderson v.

Jacksonville ISD, Docket No. 142-RI-397, p. 2 (Comm'r Educ. 1997).


      More specifically, the Commissioner explained in Gipson, at p. 3:

            Hearsay — As evidence that Petitioner failed to maintain an effective
            working relationship, or maintain good rapport, with colleagues,
            Respondent offered the testimony of Cornelia Wilson, a second year,
            non-certified probationary teacher. Wilson testified that two students
            said Petitioner referred to Cornelia Wilson, who was eight months
            pregnant, as a "big-bellied b**** and a white Motherf***er."
            Petitioner denied making the statement. The students were not
            available for cross examination by Petitioner. The use of said
            language in the presence of students is so damaging that Respondent's
            failure to have the students testify is surprising. Because Cornelia
            Wilson's testimony was objected to as hearsay, it will not be held to
            be evidence of Respondent's cause for nonrenewal.

      Further, in 2005, the Commissioner followed suit in Carnot v. North East

Independent School District, No. 066-R1-605, pp. 2-3 (Comm'r Educ. 2005):




                                        23
            Hearsay

            Petitioner argues that the Chronology of Events and a statement by
            Petitioner's supervisor should not have been admitted into evidence
            because they were hearsay. In both cases, the statements are hearsay
            and should not have been admitted.

      Perhaps the strongest statement to this effect came in a contemporaneous

decision issued by The Honorable Raymon L. Bynum, the Commissioner of

Education in 1981when the Term Contract Nonrenewal Act was enacted:

            Regardless of the manner in which the local board of trustees
            structures its hearings, however, §21.207(a) of the TCNA authorizes
            the Commissioner of Education to review the decisions of local school
            boards in nonrenewal cases on a substantial evidence basis. It is well-
            established that when the legislature uses a word, such as "evidence,"
            which has a settled legal significance, it is presumed to have been
            used in that sense. [Citation omitted.]

            In the present case, it is not necessary to define precisely what
            "evidence" is, because it is clear what "evidence" is not: in Texas the
            hearsay rule applies in administrative hearings, just as it does in court.
            And it is a rule that forbids the reception of evidence rather than one
            that merely goes to the weight of the evidence." (Citation omitted.]

            ... the . . . well-established rule in Texas [is] that hearsay evidence is
            "[w]holly incompetent and without probative force, and can never
            form the basis for establishing a cause of action , finding of fact, or
            judgment of court, whether objected to or not.

Seifert v. Lingleville ISD, No. 174-R1 a-782, p. 3 (Comm. Educ., Jan. 1983).

      In the thirty-one years since the Seifert decision, the hearsay rule has been

loosened in some respects. Section 2001.081 of the Government Code, discussed

below, allows some hearsay exceptions in hearings before state agencies under



                                         24
certain circumstances with regard to facts that are not reasonably susceptible of

proof. In addition, the courts have held that unobjected to hearsay can have some

probative value.

      The present case, however, does not involve an evidentiary hearing before a

state agency, does not involve facts not reasonably susceptible of proof, and does

not involve unobjected to hearsay.

      "Susceptible" is defined as:

      capable of submitting to an action, process, or operation <a theory
      susceptible to proofs

See http://www.merriam-webster.com/dictionary/susceptible?show=0&t=1378398320.

      In other words, §2001.081 comes into play only if the fact to be proved is

not reasonably capable of being proved.

      The allegations in this case are all "reasonably" susceptible (or capable) of

proof. They are, in fact, among the easiest matters to prove. The allegations

against Mr. Vazquez concern his overt conduct. In essence, he was accused of

acting rudely or insensitively toward students who claim to have observed his

conduct.

      The Commissioner claims that the allegations are not "reasonably

susceptible of proof" because the District does not have subpoena power. This,

however, confines two different concepts: i.e., (1) not being "reasonably

susceptible of proof'; and (2) difficulty with producing witnesses.

                                          25
      For example, whether a teacher yelled, "Shut up" to a student is reasonably

susceptible of proof in all cases. That it might be more difficult in one case than

another to procure the evidence necessary to prove this allegation does not make it

"reasonably susceptible of proof" in the first case and "not reasonably susceptible

of proof' in the second. The concept of susceptibility is not dependent on how easy

or difficult it is in a particular case to actually produce testimony in support of the

fact to be proved. It, instead, relates to whether the fact can normally be proved

through regular admissible evidence—like testimony from witnesses with personal

knowledge.

      The district, however, decries its inability to procure witnesses due to its

lack of "subpoena power" as part of the nonrenewal process. However, even if

§2001.081 (a) could be used in nonrenewal proceedings, and (b) difficulty in

producing witnesses were a factor in determining whether a fact was "reasonably

susceptible of proof," there is no (as in zero) evidence that the District, in this case,

had any difficulty in producing students as witnesses.

      The Commissioner opines, on page 17 of his Decision, that:

             When a school board hears a proposed nonrenewal itself, it does not
             have subpoena power. While students may be asked to testify, many
             parents would probably not choose to subject their children to cross-
             examination by an attorney who is zealously advocating for his
             client's employment. The lack of subpoena power means that what
             occurred in a classroom when only a teacher and students were
             present is not reasonably susceptible to proof using the hearsay



                                           26
             exceptions as applied by courts. The student statements are necessary
             to ascertain facts not reasonably susceptible for proof.

      In his Brief in this case, at p. 11, the Commissioner states that "it is unlikely

that [the students'] parents would allow them to testify and face a teacher who had

embarrassed and belittled them."

      Setting aside the fact that this claim by the Commissioner is sheer

speculation and assumes away the issue, there have been countless nonrenewal

hearings in the thirty-plus years since the Term Contract Nonrenewal Act was

enacted in which students have appeared and testified and, amazingly, not been

traumatized. In fact, there is no evidence that any student, let alone a ninth grade

student, has ever been traumatized by telling a board of trustees information within

his or her personal knowledge at a nonrenewal hearing. This is nothing but wild-

eyed speculation supported by—well—nothing.

      In addition, the burden in seeking the use of non-evidence at a hearing, to

the extent, if any, that using such information is allowed, must be on the party

offering the non-evidence; i.e., the party attempting to get around the normal Rules

of Evidence. In the present case, the District's administration, to its credit, did not

attempt to meet this burden, because it could not do so in good faith. Section

2001.081 was raised entirely sua sponte by the Commissioner; it is hard to imagine

a worst example of administrative activism.




                                          17
      What the administration did was state honestly and openly that it chose not

to call the students as witnesses. It did state that it could not produce them because

of a lack of cooperation. The superintendent, indeed, set forth his rationale as

follows:

             We didn't call children today because we have a responsibility to
             protect the children. To subject them to the imbalance of power that
             would—they would have to experience here coming before a Board
             where the only time they come here is when we praise them for their
             accomplishments. To have them come here and have to relive and be
             questioned about what they have already answered would be highly
             inappropriate.

(Transcript, p. 164)

      Need it be mentioned again that this "rationale" (a) assumes away the issue,

and (b) is not supported by anything?

      The Commissioner also asserts incorrectly, on page 23 of his brief, that

"because the District could not subpoena the students, the Board could not ensure

the students' appearance at the hearing. More accurately, the District chose to

employ a process that allowed them to argue that they could not subpoena the

students. As noted in the Commissioner's own brief, the District had the option of

employing the Independent Hearing Examiner process established in Chapter 21,

Subchapter F of the Education Code, which includes subpoena power. That

process, however, also includes an impartial fact-finder, which could result in not




                                          28
only relevant evidence being admitted in live testimony, but in an unbiased

assessment of the evidence that might not fit in with the administration's agenda.

      In other words, the District cannot hide behind its lack of subpoena power as

a reason for not producing witnesses with personal knowledge of the allegations

when it (a) chose to not have subpoena power and (b) made no effort, as discussed

above, to even try to procure those witnesses.

      There has been no change in the TCNA since the Seifert case to indicate that

hearsay is to be more freely allowed at nonrenewal hearings in 2013 or 2014 than it

was in 1983, §2001.081 of the Government Code notwithstanding.

      Mr. Vazquez's position, consistent with all previous holdings by the

Commissioner, is that blatant hearsay cannot serve as substantial evidence.

Regardless of any school district's procedures, there must be something that

constitutes evidence in the record. There is a reason for the general rule against

hearsay, which is that it is inherently unreliable in the absence of a valid, well-

reasoned exception.

      Why do we have exceptions? Because the drafters of the Rules have

determined that, in certain instances, hearsay is not unreliable—e.g., in the case of

excited utterances or statements made by a person under the belief that death is

imminent. However, in the present case, none of the exceptions to the lack of

trustworthiness apply.



                                         29
      In short, even though the Rules of Evidence might not apply as strictly in a

nonrenewal hearing as in court, the basis for the Rule remains: i.e., If Person A,

who was not present at the event about which he or she is testifying, merely repeats

what he or she was told by Person B about what Person B claims to have observed,

Person A has testified to nothing. Although the Board might want to listen to this

second hand account of what might have happened, and claim that the Rules of

Evidence do not apply, this type of information is not reliable, is not evidence, and

cannot be relied upon as substantial evidence on appeal.

      The District argues, at p. 28, that "[i]t is within the board's purview to

determine what weight to afford evidence."

      Though the Board may have license to determine what weight to afford

evidence, the Board is not authorized to give weight to non-evidence. In the

present case, the blatant hearsay submitted to the Board does not even resemble

evidence. The Board could not, therefore, use it as a basis for not renewing Mr.

Vazquez's employment.

      The standard of review is, after all, "substantial evidence," not substantial

hearsay.

3.    The hearsay rule is to be liberally applied

      The Commissioner of Education argues that the students' statements were

admissible under liberal exceptions to the hearsay rules. Commissioner's Brief, at



                                         30
19. For some reason, he supports this assertion with a statute that does not even

apply to this case—and which the Commissioner admits does not apply (at p. 21-

22): i.e., §2001.081 of the Government Code.

      Section 2001.081

      Section 2001.081 is part of the Administrative Procedure Act (Chapter 2001

of the Government Code), which has no application to school district nonrenewal

hearings. The Act's purpose is to govern contested cases before state agencies:

      Sec. 2001.001. PURPOSE. It is the public policy of the state through this
chapter to:

      (1) provide minimum standards of uniform practice and procedure for state
agencies;
      (2) provide for public participation in the rulemaking process; and
      (3) restate the law of judicial review of state agency action.

(Emphasis added)

      Sec. 2001.003. DEFINITIONS. In this chapter:

      (7) "State agency" means a state officer, board, commission, or department
          with statewide jurisdiction that makes rules or determines contested
          cases. . . .

(Emphasis added)

      Subsection (1) defines "contested case " as follows:


      (1) "Contested case" means a proceeding, including a ratemaking or
          licensing proceeding, in which the legal rights, duties, or privileges of a
          party are to be determined by a state agency after an opportunity for
          adjudicative hearing.



                                         31
(Emphasis added)


      Nothing in the Administrative Procedure Act makes the contested case

provisions of the APA applicable to school district nonrenewal hearings. While the

Commissioner is entitled to deference in his interpretation of the law, his

interpretation must not be arbitrary and capricious, as it was in this case.

      Nonrenewal hearings are governed by the Education Code and District
      policy

      Nonrenewal hearings are governed by §21.207 of the Education Code,

Subsection (b) of which reads as follows:

             (b) The hearing must be conducted in accordance with rules adopted
                  by the board. The board may use the process established under
                  Subchapter F.

      Subchapter F pertains to hearings before Independent Hearing Examiners,

which the Board, in this case, declined to use.

      Conceivably, a school district could incorporate the procedures of the

Administrative Procedure Act into its nonrenewal hearings. However, Respondent

did not even purport to do so. See Administration Exhibit 1, Policy DFBB

(LEGAL) and (LOCAL).

      Policy DFBB(LOCAL) provides, consistent with § 21.207(c), that:

             3. The employee may cross-examine any witnesses for the
                administration.




                                          32
      Mr. Vazquez was totally denied the opportunity to cross-examine the real

witnesses against him, contrary to this policy.

4.    Non-hearsay evidence did not constitute substantial evidence supporting the

Board's decision

      The Commissioner held that Mr. Vazquez would prevail even with the

admissions he made about his conduct, stating, "If Petitioner is to be believed his

actions would not warrant the nonrenewal of this contract" (Comm'r Dec. p. 27).

Regardless, this argument is one that was not raised by the appellants in the

proceedings in the District Court and should, therefore, not be considered by this

Court.

         There is no need to remand this case back to the Commissioner for further

findings because he has already ruled that no substantial evidence would support

the nonrenewal of Vazquez's contract in the absence of the hearsay statements. It

would not, as further explained by Mr. Vazquez in Section A, parts 5-6 above.

5.       Even if Vazquez does not have a due process right in the renewal of his

contract, the statute requires substantial "evidence"

         Page 26 of the Commissioner's brief states that "because Mr. Vazquez has

no right to due process in nonrenewal of his contract, the Commissioner could

consider any evidence properly admitted under the Board's hearing rules." The

brief further states that Mr. Vazquez has "failed to address an essential question: if



                                          33
a petitioner is not entitled to due process rights, what is the basis for providing that

petitioner with the procedural protection of the TRE's hearsay rule?"

      Mr. Vazquez denies that he lacks a due process right in the renewal of his

contract. See Vitek v. Jones, 445 U.S. 480, 490-91, 100 S.Ct 1254, 1262-63, 63 L.

Ed. 2d 552 (1980), in which the United States Supreme Court held:

      When a State grants a right or expectation. . .that adverse action will not be
      taken . . . except upon the occurrence of specified behavior, "the
      determination of whether such behavior has occurred becomes critical, and
      the minimum requirements of procedural due process appropriate for the
      circumstances must be observed." Wolff v. McDonnell, 418 U.S., at 558, 94
      S.Ct., at 2976. These minimum requirements being a matter of federal law,
      they are not diminished by the fact that the State may have specified its own
      procedures that it may deem adequate for determining the preconditions to
      adverse official action.


      The State has granted a right or expectation to Mr. Vazquez: i.e., that his

contract will be renewed unless the school district takes affirmative action, in

accordance with the requirements of the Term Contract Nonrenewal Act, to

nonrenew his employment for the succeeding school year. The TCNA mandates

that, as a prerequisite to the adverse action of nonrenewal, there must be the

occurrence of specified behavior spelled out in district policy. Tex. Educ. Code

§21.203,.206-.207.

       However, even if the Commissioner were correct in his statement that due

process does not apply in this case, it does not matter. The Term Contract

Nonrenewal Act, as previously and consistently held by prior Commissioner's

                                           34
decisions, requires (a) a district to base nonrenewal decisions on evidence, and (2)

the Commissioner to review the Board's decision for substantial evidence.



                                 CONCLUSION

      The Term Contract Nonrenewal Act, Chapter 21, Subchapter E of the

Education Code, was a weak statute with regard to protecting teachers from the

moment it was enacted in 1981. It was better than what teachers had previously,

which was nothing: where a teacher could teach in a school district for twenty-five

years with exemplary results and suddenly learn at the end of his twenty-fifth year

that he would not be offered a contract for the ensuing school year, and not even be

told why. See Hix v. Tuloso-Midway ISD, 489 S.W.2d 706, 711 (Tex.App.—

Corpus Christi 1972—writ red, n.r.e.):

      Under the facts and circumstances presented by this appeal, the Board of
      Trustees, under Texas Law, had the exclusive right and sole legal authority
      to re-employ or not re-employ plaintiff, with or without reason, so long as
      his constitutional rights were not violated.

(Emphasis added.)

      In 1981, the legislature enacted the TCNA, which required school districts to

give veteran, non-probationary teachers notice of their proposed nonrenewal,

reasons for the proposal, and a hearing concerning those reasons. Under this

statute:




                                         35
      (a) The teacher was still at a major disadvantage at the hearing, having to
          persuade the Board of Trustees to go against its superintendent, who it
          works with closely on a continuing basis, and who it pays well to run the
          day to day operations of the district, advise it as to policy, and
          recommend employment of its teachers and administrators; and

      (b) Any adverse decision by the Board stands on appeal if it is supported by
         substantial evidence and is not arbitrary and capricious, difficult
         standards to overcome.

      For more than three decades, the Commissioner of Education has required

that, at the very least, school districts must only meet this most minimal of

standards (i.e., substantial evidence/arbitrariness and capriciousness).

      In the present case, the Commissioner has abandoned even the minimal

substantial evidence standard, as if it is too much to ask of the school district to

base its decision on even what has been described as "more than a scintilla of

evidence."

       Instead, legislating from his office in the William B. Travis State Office

Building, the Commissioner has decided, out of nowhere, to suddenly re-legislate

an Act that has been consistently applied for more than thirty years: by requiring

no evidence to uphold the district's action; by requiring, instead, "substantial

hearsay."

      The trial court correctly held that this is an improper standard. Its decision

should be affirmed.




                                          36
                                    PRAYER

      For the above reasons, Mr. Vazquez requests that the Court AFFIRM the

District Court's Final Judgment overturning the decision of the Commissioner of

Education and grant the following relief:

      1.    Find that the Board of Trustees acted arbitrarily, capriciously, and

            without substantial evidence when it nonrenewed Mr. Vazquez's

            contract;

      2.    Overturn the Board's action;

      3.    Enter an Order declaring the Board's action to be void;

      4.    Order Los Fresnos ISD to reinstate Plaintiff's employment with back

            pay from the date of nonrenewal to the date of reinstatement,

            reimbursement of any expenses incurred by Mr. Vazquez due to the

             loss of any non salary employee benefits, and an amount sufficient to

             compensate Mr. Vazquez for the expected loss of retirement benefits

             due him;

      5.     Or, in lieu of requests 2 through 4, remand this case to the

             Commissioner of Education with instructions to enter an Order to the

             same effect; and

      6.     Grant any other appropriate relief.




                                            37
       Respectfully submitted,

       BRIM, ARNETT, ROBINETT, P.C.
       Attorneys at Law
       2525 Wallingwood Drive
       Building 14
       Austin, Texas 78746
       (512) 328-0048
       (512) 328-4814 (facsimile)
       mrobinett@brimarnett.com


BY: /s/ Mark W. Robinett
      MARK W. ROBINETT
      State Bar No. 17083600




  38
                     CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this Appellee's Brief
contains 9,513 words. This is a computer-generated document created in
Microsoft Word, using 14 point typeface for all text. In making this certificate of
compliance, I am relying on the word count provided by the software used to
prepare the document.

                                      /s/ Mark W. Robinett
                                      MARK W. ROBINETT


                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has
been delivered by e-mail on this the 19th day of March, 2015 to:

Jennifer L. Hopgood
Assistant Attorney General
Administrative Law Division
Office of the Texas Attorney General
P. 0. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.hopgood@texasattomeygeneral.gov
Attorney for Michael Williams

and

D. Craig Wood
Attorney at Law
Walsh, Anderson, Gallegos, Green & Trevino, P.C.
P. 0. Box 460606
San Antonio, Texas 78246-0606
cwood@wabsa.com
Attorney for Los Fresnos ISD

                                             Is! Mark W. Robinett
                                             MARK W. ROBINETT




                                        39
                                   APPENDIX


TAB

A     Transcript Hearing (Pages cited in brief)
      Tr. 25:18 through 26:6
      Tr. 28:13-24
      Tr. 30:6-23
      Tr. 99:12-23
      Tr. 109-18-25
      Tr. 117:10 through 118:21)
      Tr. 123:20-124:1
      Tr. 125:12-126:15
      Tr. 126: 14 through 130:14
      Tr. 131:13 through 133:4
      Tr. 159:14 through 160.10

B     Cases not included in Appellants' Appendices
      1. Jeannette Seibert v. Lingleville Independent School District
      2. Kathy Anderson v. Jacksonville Independent School District

C     Board Hearing Procedures Policy DFBB (LOCAL)
                 TAB A

Transcript of Hearing (Pages cited in brief)

           25:18 through 26:6
           Tr. 28:13-24
           Tr. 30:6-23
           Tr. 99:12-23
           Tr. 109:18-25
           Tr. 117:10 through 118:21)
           Tr. 123:20-124:1
           Tr. 125:12-126:15
           Tr. 126: 14 through 130:14
           Tr. 131:13 through 133:4
           Tr. 159:14 through 160.10
                                                                                                     Page 1
   1

    2

    3

    4

    5

    6                                                      LOS FRESNOS

    7                        CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

    8                                               JORGE VAZQUEZ, JR.

    9                                             NONRENEWAL HEARING

  10                                                       JUNE 13, 2013

  11

  12                                                         - - -

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22                       BE IT REMEMBERED that on the 13th day of June,

  23 2013, in the Training Center Board Room located next to

  24         Los Fresnos Elementary School, 3602 State Highway 100,

  25         Los Fresnos, Texas, a Special Board Meeting was held.


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                                                                                                     Page 2
    1                                       APPEARANCES

    2       FOR THE ADMINISTRATION:
    3             D. Craig Wood
                  Elizabeth G. Neally
    4             WALSH, ANDERSON, GALLEGOS, GREEN & TREVINO P.C.
                  100 NE Loop 410, Suite 900
    5             San Antonio, Texas 78216
    6
            FOR JORGE VAZQUEZ, JR.:
    7
                  Mark W. Robinett
    8             BRIM, ARNETT, ROBINETT, HANNER & CONNERS
                  2525 Wallingwood Drive, Suite 1400
    9             Austin, Texas 78746
  10
  11 Board MEMBERS
  12               Darlene Pederson
                   Ruben Trevino
  13               Rey Farias
                   Leonel Garza
  14               Martin Castillo
                   Gonzalo Salazar
  15
  16
  17
  18
  19
  20
  21
  22
  23
  24
  25


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                                                                                                        Page 3
    1                                              INDEX
                                      ADMINISTRATION'S DIRECT EVIDENCE
    2
             WITNESSES:
    3
                   JOSEPH VILLARREAL
    4                  Direct Examination by Mr. Wood                              20
                       Cross-Examination by Mr. Robinett                           54
    5                  Redirect Examination by Mr. Wood                            73
                       Recross-Examination by Mr. Robinett                         81
    6                  Redirect Examination by Mr. Wood                            83
    7              ADA AMARO-SIBAJA
                       Direct Examination by Ms. Neally                            84
    8                  Cross-Examination by Mr. Robinett                           89
                       Redirect Examination by Ms. Neally                          92
    9
                   GONZALO SALAZAR
  10                   Direct Examination by Mr. Wood                               93
                       Cross-Examination by Mr. Robinett                           100
  11                   Redirect Examination by Mr. Wood                            110
                       Recross-Examination by Mr. Robinett                         110
  12
                                       JORGE VAZQUEZ' DIRECT EVIDENCE
  13
                   JORGE VAZQUEZ,JR.:
  14                   Direct Examination by Mr. Robinett                          115
                       Cross-Examination by Mr. Wood                               149
  15
                                    ADMINISTRATION'S REBUTTAL EVIDENCE
  16
                   GONZALO SALAZAR
  17                   Direct Examination by Mr. Wood                              154
                       Cross-Examination by Mr. Robinett                           161
  18
                                ADMINISTRATION'S DOCUMENTARY EVIDENCE
  19
                                       NO.                           DESCRIPTION
  20
                                       1                    Notice of Proposed Nonrenewal
  21
                                       2                    Recommendation to Propose
  22                                                        Nonrenewal
  23                                   3                    Term Contract
  24                                   4                    Written Job Description for
                                                            Classroom Teacher
  25


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                                                                                                     Page 25
   1        that it is never acceptable to pretend to videotape a

   2        student in a classroom. Do you agree with that

   3        statement?

   4              A. Yes. If you're either going to videotape or

   5        pretend to videotape, it's absolutely -- you know, it's

   6        out of character -- out of line for a professional.

   7              Q. Okay. And I would like you to turn to Exhibit

   8        No. 13. Let's see. I'm sorry. That's the wrong one.

    9       Let me jump here. To Exhibit No. 17, sir.

 10               A. (Witness complies.)

  11              Q. And Exhibit No. 17 appears to be some student

  12        statements that were submitted in connection with this

  13        incident involving the tossing of hair; is that correct?

  14               A. Yes.

  15               Q. And the first student there -- and for purposes

  16        of the record, she will be identified as S.G., but S.G.

  17        was the --
  18                                  MR. ROBINETT: I'm going to object to any of

  19        the student statements in Exhibit 17. Those are all

  20        statements made by individuals who aren't here to be

  21        cross-examined, which is commonly called hearsay.

  22                                  MS. PEDERSON: What is your position on

  23         this?

  24                                  MR. WOOD: My response to that, Your Honor,

  25         is I can authenticate the investigation. I would


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                                                                                                     Page 26
   1        further respond that the Texas Rules of Evidence have

   2 been specifically noted to not apply in this particular

   3        situation. I believe that the evidence is admissible,

    4       but the Board can -- may consider it.

   5                                  MS. PEDERSON: I'm going to go ahead and

   6 overrule.

    7       BY MR. WOOD:
    8              Q. Mr. Villarreal, these documents that appear out
    9 of Exhibit No. 17, are those statements that relate to

  10        the investigation of that particular incident? I think

  11         you answered that, but --

  12               A. Yes.

  13               Q. And so with respect to the particular -- the

  14        first item in that particular exhibit, is that -- is
  15 that young lady who was subject to this humiliating
  16 treatment?
  17               A. Yes, sir.
  18               Q. And, likewise, behind that, there are several
  19 other statements that appear as well; is that correct?

  20               A. Yes.
  21               Q. And do you believe that the actions taken by

  22 Mr. McDonough, in issuing the Notice of Warning to
  23 Mr. Vazquez in connection with this incident, was
  24 warranted?
  25               A. Yes, absolutely.


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                                                                                                      Page 28
    1 to my attention by a teacher who had -- who had heard
    2       from a student that another student in Mr. Vazquez's
    3       class had been subjected tb ridicule by Mr. Vazquez in

    4       his reference to what the student was wearing. In this
    5       instance, he was wearing suspenders and a belt, and

    6 Mr. Vazquez was questioning the student as to why he was

    7       wearing suspenders and a belt, that they shouldn't be

    8 worn together, but continually brought up that specific
    9 topic in the short amount of time that the student was

  10 in class. And so the other students in the class felt
  11        that it wasn't appropriate, and so they reported it to
  12 another adult who immediately reported it to me.
  13                                  MR. ROBINETT: I'm going to object again as
  14        to it being hearsay.
  15                                  MR. WOOD: Same response, Your Honor.
  16                                  MS. PEDERSON: Again, Rules of Evidence do
  17        not apply, so I'm going to go ahead and overrule this.
  18                                  MR. ROBINETT: Just for the record, I will
  19        submit that even if the Rules of Evidence don't strictly
  20 comply, the rules of common sense and logic do apply,
  21         and that any attempt to get in what is blatant hearsay
  22 goes beyond the leeway given to the Board in this type
  23        of situation.
  24                                  MS. PEDERSON: Noted.
  25         BY MR. WOOD:

                                                                                                •


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                                                                                                              Page 30
    1        you, sir?

    2              A. Yes, I do.

    3              Q. Is this N.N.'s statement about this situation?

    4              A. Yes, it is.

    5              Q. Now, he also provided some subsequent --

    6                                 MR. ROBINETT: I'm going to object, again,
    7       as hearsay, and maybe -- well, I think I probably just

    8        need to note my objection every time hearsay is gone
    9 into.

  10                                  MR. WOOD: Your Honor, I would be willing
  11        to, rather than taking the time, just grant Mr. Robinett
  12         a standing objection to hearsay with respect to the
  13        student statements.
  14                                  MS. PEDERSON: Okay. You may continue.
  15                                  MR. ROBINETT: Okay. Is it okay that the
  16        standing objection is good?
  17                                  MS. PEDERSON: Yes.
  18                                  MR. ROBINETT: So the Board is aware that
  19 every time they start talking about what a student has
  20         told them either in writing or orally, I don't have to
  21         state the objection; the Board understands it's
  22        standing?
  23                                  MS. PEDERSON: It will be noted, yes.
  24                                  MR. ROBINETT: Thank you.
  25         BY MR. WOOD:

                                                                                     -   -   -   - •■ • • •

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                                                                                                     Page 99
    1 classroom management to pretend to set up a camera to
    2 record a student to establish how many times that

    3       student has toyed with her hair? I do recall that

    4 meeting.

    5             Q. And that's all you know about it, is that it was
    6 about a student toying with her hair?

    7              A. Yes, sir, and how he believed it disrupted class,

    8       but it didn't matter. It mattered less to him that we
    9 were consuming precious instructional time pretending to
  10 set up a camera to record the student and to do this in

  11        front of all of her classmates.

  12               Q. And did it make any difference to you who that

  13        student was?
  14               A. It doesn't make a difference to me, sir.
  15               Q. Well, it did make a difference to you that the
  16        student was the school Board president's daughter,
  17        didn't it?
  18               A. No, sir. I have an obligation to protect every
  19 child.
  20               Q. Isn't that the only reason that you were upset
  21         with Mr. Vazquez is because the school Board president
  22         told you to be?

  23               A. No, sir.

  24               Q. It was entirely a matter of politics, wasn't it?
  25               A. It is not, sir. It's a matter of ethics. It


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                                                                                                  Page 109
   1        BY MR. ROBINETT:

   2              Q. WOULD you not agree, Mr. Salazar, that the best

   3        time to obtain a rebuttal is before you have taken a

   4        position on the situation?

   5              A. I will agree with that.

   6                                 MR. ROBINETT: I'll pass the witness.

   7                                 MR. WOOD: Nothing further. Thank you,

   8        Mr. Salazar.
    9                                MS. PEDERSON: Does the Administration have

 10 anything further to present to this Board?
 11                                  MR. WOOD: We do not, Your Honor.

  12                                 MS. PEDERSON: Are you going to submit any

  13 documents or --
  14                                  MR. WOOD: Yes. At this time I would offer

  15        the Administration Exhibit Nos. 1 through 24 as
  16 previously provided to opposing counsel and as provided
  17        to the chair.

  18                                  MR. ROBINETT: And I would like to note that
  19 before the hearing, Mr. Wood and I agreed that the
  20 documents I presented to the Board were stipulated to,
  21 and I would stipulate to the School District's exhibits
  22 other than the student statements which are specifically

  23        in tab 11, 17. Also, some of them are in tab one, and

  24         if I have missed any, I would object to student

  25         statements that pop up in any other tab as well.


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                                                                                                        Page 117
   1              Q. Now, when you refer to that student -- let me

   2        preface it by saying, have you ever intended to hurt any

   3        student's feelings?

   4              A. No.

   5              Q. Have you ever intended to embarrass or humiliate

   6 a student?

   7              A. No.
    8             Q. Or bully or intimidate them?

    9             A. No.

 10               Q. Let's go back to the student you were starting to

  11        talk about with regard to the pretend videotape. Can

  12 you explain to the Board what happened in that

  13 situation?
  14               A. Sure. I explained it to Mr. Salazar when he

  15        called me in for that meeting. I told him that what I
  16 used to do before that incident was I would record my

  17        students' presentations for my communications class.

  18        That's what she was in, she was in a communication

  19        class. So it wasn't that I took time to set it up; it
  20 was already set up because we had been having
  21 presentations. And she had been misbehaving. She had
  22 been off task. She and her two friends had been sitting

  23         there distracting the rest of my class, and that day,

  24         just like I mentioned to him, I moved about a third of

  25         the class because they were being disruptive, and I

                                                     ..TE.1.....1...1.1,   ....


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                                                                                                                                  Page 118
   1       wasn't going to tolerate that in my class.

   2             Q. Was this about her twirling her hair?

   3             A. No. It was -- she would be talking to them. She

   4       would be off task. That would make them get off task

   5       also, and everybody else in the class was doing their
   6 job except for a few of the students that were around

   7        her, and that's why I decided just to move everybody

   8        just to be fair, and that's why I moved her. And then I
   9 told her about taping her to make her correct her

 10         behavior. Was there any tape? No, because Mr. Salazar
 11 asked the technicians to look through every computer

 12         that I had. That's the classroom computer, my laptop,

  13        everything was looked through. There wasn't anything on

  14 there.
  15              Q. Did you pretend to tape her?

  16              A. Yes.
  17              Q. Now, you have heard Mr. Salazar and
  18 Mr. Villarreal talk about how horrible that was and that

  19 you were bullying or humiliating or intimidating the

  20        student. Is that what you felt you were doing?

  21              A. No. And they keep talking about putting her in

  22        front of the class. She wasn't in front of the class.

  23        She got moved to the front row; that's what happened.

  24        It wasn't like I put her up at the podium that we have

  25        in our class and said, "Okay. Stand up there and let's

                                                          II■afa■•■•••11■1■1•••■.=■,11+......1114%..1....


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                                                                                                    Page 123
    1        keep the kids interested in it. Were some of them upset

    2       because they were doing it? Of course, because some of

    3       them actually had the BIM class also, which they

    4       shouldn't have. You cannot have BIM before you take

    5        keyboarding. It's a requirement, and yet they had that.

    6              Q. The implication was made that you were trying to

    7       convey that you didn't think the keyboarding class was

    8       important. Do you ever talk to the students about the
    9       importance or lack of importance of keyboarding?

  10               A. My class is -- I graduated in 1977 from Hanna. I

  11        did not have to take keyboarding back then or typing as

  12        it was called back then, but I did take it because I

  13         knew the importance of it. I knew that if I went to

  14        college, I was going to have to type out papers and
  15         reports. It was not a required course back then. Some

  16 of you are old enough to remember that, and yet I took
  17        it. So why would I not encourage it? I just don't
  18        encourage it as a one-year, full semester class because
  19         there's just not enough material.
  20               Q. Now, back to the student that you did a pretend
  21 video of, was it your intention to try to embarrass her?
  22               A. No.

  23               Q. What was it that you were trying to accomplish?
  24               A. I wanted her to change her behavior in my class
  25         and to quit disrupting my class with her two friends


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                                                                                                     Page 124
    1       that were always sitting with her, so I decided to move

    2       her. My policy is -- I don't set them up -- line them

    3       up A, B, C, D. I don't line them up that way. They

    4       come into my class. I say, "You sit where you would

   5        like to sit," and unless something like this happens

    6 where the behavior has changed that is disruptive to my
    7       class, then I start assigning seats, but other than

    8       that, they can literally sit wherever they want. That

    9       was back then, that's it's now. And that was last year.

  10        I still do it -- this year, I still do it that way.

  11              Q. Now, you mentioned that you had spoken with the

  12 Administration about that incident --
  13               A. Uh-huh.
  14              Q. -- and what was -- what were you told by the
  15 principal and by Mr. Salazar concerning their viewpoint
  16        of it?
  17               A. They said that it wasn't proper gauche. I have
  18        trouble saying the word, but for education purposes, it
  19        was not proper; that it was bizarre was                          Mr. Salazar's
  20 comment, which kind of hit the spot there with me.
  21               Q. It didn't seem to be bizarre at the time you were
  22        doing it?
  23               A. No. It was just a way of correcting it. I've
  24         been in management most of my life. I have dealt with a
  25        lot of people's money. I've had a lot of secretaries


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                                                                                                     Page 125
    1        and a lot of assistants, and the thing is, too -- when I
    2        was at Wal-Mart, if I did what happened to me here,
    3 would have gotten fired as a manager because I didn't

    4        follow protocol. You talk to them. You tell them what

    5        the situation is. You give them corrective behavior.
    6        If they don't follow corrective behavior at Wal-Mart,
    7        you tell them, "This is what you're going to do. If you

    8        don't want to follow it, then you're going to get
    9        fired." Nowhere in this situation did they do that. I
  10         wasn't spoken to about this last notice until it
  11         actually happened, that they gave it to me.
  12               Q. Well, after Mr. McDonough and Mr. Salazar voiced
  13         their displeasure with the way you handled the
  14         situation, what action did you take?
  15               A. I have never recorded a student again. I haven't
  16 done it in -- I mean, my whole Banking and Finance class
  17         changed as far as -- they still do presentations, but we
  18         can't critique them, which is important for a person to
  19         see themselves -- it's real easy for me to say, "You did
  20         this wrong. You should have been standing proper. You
  21         should have been" -- but for a student to actually --
  22         whether they're in high school or whether they're in
  23         college -- and it's an articulate class. It should be
  24         taught like it was in college.
  25                        For them to really understand what they're doing


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    1 wrong and what they need to correct in a presentation,

    2       it's a lot easier for them to see themselves because

    3       then it's not like, "Oh, he's just telling me stuff."
    4       They actually get to see themselves, and that's why they

    5       were recorded. And, also, they have the benefit of

    6       taking it to their parents and showing them the kind of

    7       work that they're doing in my class.

    B              Q. So the recording wasn't something that you
    9 thought would embarrass the student; they were used to
  10 it?

  11               A. Right.

  12               Q. But you haven't done it since then?
  13               A. No, because of what happened.
  14               Q. Now, the other thing that occurred in the
  15 previous school year was the showing of a movie in your
  16 class. Can you explain to the Board how that came
  17         about?
  18               A. I was moved from -- I had to use the lab in 609,
  19 which is now my current classroom, so I was moving from
  20         613 to 609, and so I took my whole class over there to
  21         do their assignments, and Ms. Padilla was using the
  22         classroom for testing. So after we had set up

  23 everything, they came in, and we had to literally get up
  24         and go back to our classroom. And they started talking
  25         about showing a movie, and that's not an uncommon thing

                                  ....-.--••••■••■■•••••■••41•••••••■••■••       ••
                                                                       • •••••••••••••••*•- fr..-   •

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   1        in our district or our high school or at United where if

   2        something goes -- changes, and people show movies.

   3                       Now, it's not something that I normally do, but

   4        the kids kept on and kept on. "It's only about 20 more

   5 minutes until the bell. Just show us a little bit of

   6        it." And a student suggested a movie, and they

   7 mentioned that they had already seen it in another

   8        class. I just took it for granted that it was okay.

   9        They told me which one it was. I said it's PG-13, and

 10         so it seemed okay because of the age -- it's a national

 11         certification. It's not just me coming up with the

 12         PG-13. That's the national certification for the movie.

 13                Q. Now, was that your plan that day to show a movie

 14         in your class?

  15               A. No, and that's why it wouldn't have been on my

  16        lesson plan because it wasn't part of it. My lesson
  17 plan was to go into the lab and have -- go through their

  18        exercises.
  19               Q. And, again, you left the lab why?

  20               A. Because Ms. Padilla went in there to do some

  21         testing.

  22               Q. Ms. Padilla is who?

  23               A. Ms. Padilla is the assistant principal, the Dean

  24         of Instruction of there.

  25               Q. So Ms. Padilla removed you from the lab?

                                                                                                            ■
                                                                                                            ••■■■••.-.


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    1              A. Right.

    2              Q. Which interfered with your class that day?

    3              A. Yes.

    4              Q. When you got back to your classroom, how much

    5       time was left?

    6              A. About 20, 25 minutes.

    7              Q. And were you -- did you have enough time at that

    8 point to go ahead with your lesson for the day?

    9              A. No. It wouldn't have been -- normally, a lesson,

  10        they're going to run maybe 45 minutes, maybe 50, 55, and

  11        they're going to give the children or the students time
  12        to do their exercises, to work on their assignment so we
  13        can correct whatever is wrong.

  14               Q. So how much time was left when you got back to

  15         the class?
  16               A. About 25 minutes.
  17               Q. And how much time was the movie playing?
  18               A. They saw maybe the first 10, 15 minutes.
  19               Q. Now, you said that you were told by these
  20 students that some other teacher had shown the same

  21 movie?

  22               A. Yes.

  23               Q. But after you showed the movie, which is PG-13,
  24         again, the Administration asked you to talk to them
  25         about it; is that right?


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    1              A. Talk to the kids about it?
    2              Q. No. Talk to you -- the Administration talked to

    3        you about it.

    4              A. Yes. I told them that -- the way it was written

    5        out, the Notice of Warning, it implied that the whole
    6 movie had been shown, and it wasn't. And when the

    7 students came back the next day and they wanted to

    8        finish seeing it, it was, like, no, because, then, I had

    9        finished seeing it. It was, like, okay, I understand
  10         you might not want to show it, and I didn't.
  11               Q. Now, after you were talked with about the movie
  12         and you received the Notice of Warning, which was

  13         brought up previously, what action did you take as far
  14         as movies were concerned in the future?
  15               A. I haven't shown a movie since.
  16               Q. Have you even tried to show a movie -- to get
  17         permission to show a movie?
  18               A. I asked Mr. Villarreal one question this
  19         semester, and it was -- the kids kept telling me they
  20         wanted to see Pitch Perfect. I have never seen the

  21 movie, and they kept nagging me and nagging me about it.
  22         I said, "I don't show movies," and I was, like, "Okay,
  23         fine. Let me call him up and let me ask him," and
  24         Mr. Villarreal said no because there's some language, I
  25         believe. Again, I haven't seen the movie, but what the


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    1       kids were telling me is that they had watched part of
   2 the movie at the gym when they were doing the testing,

    3 so how is that being -- how does that even fit into

    4       anybody's lesson plan?

    5             Q. But the bottom line is once you were told not to

    6 show movies without getting permission, you have not

    7       shown any movie at all?

    8             A. Right, I haven't. I haven't even bothered to.

    9 When I talked to Mr. Villarreal about that particular

  10        one, it was just to get the kids off my back because

  11        they kept saying, "Well, we see it in the gym." It was,

  12        like, "Well, this isn't the gym," and I wasn't going to
  13 risk anything because I truly have enjoyed working for

  14        this district.

  15               Q. All right. Now, would you take a look at the

  16 Notice of Warning you received on March the 5th, which I
  17        believe is the School District's Exhibit 8?

  18               A. 8?
  19               Q. I'm trying to verify that. Yes, No. 8.
  20               A. Okay.
  21               Q. And the first item on that was that there was a
  22 complaint that you questioned a student's manner of
  23 dress although the student was not violating dress code

  24         policy. Now, Mr. Villarreal states that he discussed
  25         that matter with you; is that correct?


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   1              A. Yes.

    2             Q. Did he discuss it with you before he gave you the

   3 Notice of Warning or the memorandum about that? It

    4       wasn't a Notice of Warning, but before he counseled you

   5        about that incident?

    6             A. Yes. Your question one more time.

   7              Q. Well, did he get your side of the story before he

    8       wrote you up about the suspenders and belt incident?

    9             A. Yes, he got my side of the story before he wrote
  10 me up, and that's what the -- the E-mail that I sent

  11        back to him, I asked him at that point if I violated any

  12        policies. He said no.

  13              Q. Now, can you explain to the Board what happened

  14        in connection with this student who was wearing the

  15        suspenders and a belt?

  16               A. He came up to my desk because he wanted his --

  17        his log-in and his password weren't working. When he
  18        got close to my desk, I saw his suspenders and his belt,
  19 and when he got close to my desk -- it just -- I asked
  20 him whether he -- why he was wearing them, if he knew
  21        that you usually don't wear suspenders with belts.
  22               Q. What was your intent in doing that?

  23               A. Well, my intent was to make sure that somebody
  24 didn't make fun of him because -- unless things have

  25         changed, and apparently they have, I mean, I don't -- we


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    1       don't wear belts with suspenders without having somebody

    2       say something about them, and I just was trying to make

    3       sure that he didn't get made fun of. It wasn't an

    4       intention to hurt. When we were discussing this,
    5       Mr. Salazar (sic) mentioned that the boy had issues, and
    6       I was, like, "Well, you should tell us if he has social
    7       issues so that we can handle him a different way. Does

    8       he have modifications?" "No," and he mentioned that,

    9 too.
  10               Q. What do you mean by Mr. Villarreal told you that
  11        he had issues?
  12               A. He said that he had had him at the middle school
  13        that he was at before and that he had a hard time
  14        dealing with other students, other people.
  15               Q. So was the implication that you got that he was
  16         very sensitive?
  17               A. Yes.
  18               Q. Did you have any reason to believe that before
  19         this incident?

  20               A. No, because I had missed a lot of days at the

  21 beginning of the semester because I was sick.
  22               Q. Now, when you made this statement, were you
  23         trying to bring that to the attention of the entire
  24 class?
  25               A. No. I was just trying to let him know that you


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                                                                                                     Page 133
    1        normally don't do that, to help him out.

    2              Q. Did you take any steps that you thought would

    3        keep it out of the purview of the rest of the class?

    4              A. I didn't think I was talking loud.
    5              Q. There was an allegation made in one of the
    6 documents, which we have objected to as hearsay, which

    7        said something about a light switch and -- being on or

    8       off and having something to do with this student N.N.

    9        Do you recall that incident?

  10               A. I know that I have used that before because it's
  11         a programming situation. It's called a bleam. It's

  12         either on or off. It's a yes-or-no answer, if you're
  13         familiar with it, and programming is -- I teach visual
  14         basic. That's an application. We do -- actually do
  15 programs that come up on your screen and you can enter
  16         information. It does calculations for you. It does
  17         reservations, so I have used it before as an example in
  18         class on how things work as far as answering yes or no.
  19                        Now, do I remember using it that day, no. My
  20         response is the same thing; I don't remember using it
  21         that day, but -- like I said, I was sick. I had come in
  22         and I thought I was well, and, like I said, when I was
  23         talking to him, I thought I was talking just between him
  24         and me to hear, not for the rest of the class.
  25                Q. Well, did the incident with the on/off switch,


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    1 by pointing you back to that last exhibit that you
    2             looked at, which was Exhibit No. 7, Mr. Vazquez' own
    3             letter when he applied for employment with the District,
    4             and this is the statement that he said when he applied

    5             for employment with Los Fresnos Consolidated Independent
    6             School District. He said, "A tyrant should not run the
    7             class but an understanding teacher," and I'm going to
    8             tell you, that's what Mr. Salazar is asking you to do is
    9 make sure that a tyrant is not running the class but an
  10              understanding teacher instead. Thank you.
  11                                  MS. PEDERSON: Mr. Robinett, you may now
  12 make closing argument. The argument will be limited to
  13 not more than five minutes.
  14                                  MR. ROBINETT: The humorous thing about the
  15              Administration's close was its first few words where it
  16              said, "The evidence speaks for itself." There is no
  17              evidence. This is the most pathetic example of a lack
  18              of evidence that is imaginable. All you have is the
  19 Administrative coming here and saying, "Somebody told me
  20              that somebody did something else." That's all you have.
  21 You don't get a chance to cross-examine or to consider
  22 anything that is being told to you by the people who
  23 actually claim to have experienced it to see whether
  24              they are people who are credible when they're asked
  25 directly about their statements or asked to put things

        11146...16.


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                                                                                                    Page 160
   1        in context where they can say, well, either they're

   2        lying, or, you know what, you have a point. I didn't

   3        recall that. Now that you put it in context, what I was

    4       saying, it isn't quite as clear even though it happened

   5        a few months earlier.

    6                                There's nothing resembling evidence, so you

   7        can say you're not going to apply the strict rules of

    8       evidence in this case, but there has to be something

    9       resembling evidence. There is nothing. The whole thing

  10        is a sham. Now, I have to mention one other thing,

  11        which is that it's contemptible what the Administration

  12        has done to try to imply that there's any sexual

  13        connotations just because Mr. Vazquez is saying nice

  14        things to people.

  15                                  Every time a male says a nice thing to or
  16        about a female, it's not sexual, and it's shameful that
  17         Mr. Salazar would allow that to happen, allow that
  18        implication to even be out there, and you ought to
  19        sanction him for doing it. You've talked about

  20         bullying. There is bullying going on in this case, but
  21         it's bullying by the Administration of Mr. Vazquez.
  22 Mr. Vazquez has not bullied anyone, that -- what the

  23         District is going to have happen tonight, if it goes

  24         ahead and follows Mr. Salazar's advice, is to lose a

  25         great teacher and a great person. Not a good teacher,


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                                                  Los Fresnos CISD L.R. 0160
    TAB B - No. 1

Jeanette Seifert v. Lingleville
                                   1983 TX Ethic. Agency LE IS 174
                                      Copyright (c) 1983 Texas Education Agency

                                          January 27, 1983; January 27, 1983

                                              DOCKET NO. 174-R I a-782

Reporter
1983 TX Educ. Agency LEXIS 174


JEANETTE SEIFERT v. ; LINGLEVILLE INDEPENDENT SCHOOL DISTRICT

Core Terms

nonrenewal, teacher, incompetent, hearsay, notice, substantial evidence, board of trustees, rerd, term contract, school
district, local board, school year, excited, utterance

Panel: I II RAYMON L. BYNUM, COMMISSIONER OF EDUCATION


Opinion

DECISION OF THE COMMISSIONER

Statement of the Case

Jeanette Seifert, Petitioner, brings this appeal from an action of the Board of Trustees of Litteleville Independent School
District (LISD), Respondent, to nonrenew her teaching contract for the 1982-83 school year.

Mark W. Robinett is the Hearing Officer appointed to prepare this Proposal for Decision and such other documents as may
be necessary in this case. Petitioner is represented by Dianne E. Doggett, Attorney at Law, Austin, Texas. Respondent is
represented by Marilyn Shell, Attorney at Law, Stephenville, Texas.

On November 16, 1982, the Hearing Officer entered a Proposal for Decision recommending to the State Commissioner of
Education that Petitioner's appeal be granted. The record reflects that a copy of the Proposal for Decision was received by
all parties, and that Respondent's Exceptions to the Hearing Officer's Proposal for Decision were filed on December 8,
1982. No replies to Respondent's Exceptions were filed.

Findings of Fact

Having considered all evidence and matters officially noticed, in my capacity as State Commissioner of Education, I make
the following Findings of Fact: 1 21

1. At all times relevant to this appeal, Respondent had in full force and effect School Board Policy DOAD (Ex. C) which
provides, in part, as follows:

Reasons for nonrenewal of a professional certified employee's contract shall be:

I. Deficiencies pointed out in observation reports, evaluations, or other Supplemental memoranda.

3. Incompetency

15. Any activity, school-connected or otherwise, that because of publicity given it, or knowledge of it among students,
faculty, and community, impairs or diminishes the employee's effectiveness in the District.

                                                   MARK ROBINETT
                                                                                                                  Page 2 of 5
                                           1983 TX Educ. Agency LEXIS 174, •4

2. Petitioner was given written notice on March 2, 1982 that the superintendent had recommended to the Board of Trustees
that Petitioner's contract be nonrenewed because of a "community feeling of incompetence." Ex. D.

3. On March 29, 1982, a hearing was held before LISD's Board of Trustees on the issue of the proposed nonrenewal of
Petitioner's contract.

4. After the hearing on March 29, 1982, LISD's Board of Trustees voted to nonrenew Petitioner's contract for the I982-83
school year.

Discussion

Petitioner contends that the nonrenewal of her contract by LISD's Board of Trustees is invalid under the Term Contract
Nonrenewal Act (TCNA), I 31 .r•%. Ethic. Cod( 4,in._§ 21.21' et seq. (Vernon Supp. 1982), because (I) the reason given
Petitioner for her proposed nonrenewal (i.e., "community feeling of incompetence") is not listed as a reason for nonrenewal
in Policy DOAD; (2) a "community feeling of incompetence" is not a proper basis for nonrenewal, because it is not
educationally related; and (3) there is not substantial evidence of incompetency, which is the only reason for nonrenewal
listed in Policy DOAD of which she had fair notice.

Respondent, on the other hand, contends (I) that its decision is not subject to the TCNA, because Petitioner's contract was
signed before the Act took effect; (2) it is not requisite for a district's policy reasons for nonrenewal to be educationally
related; (3) "community feeling of incompetence" is nonetheless an educationally related standard which encompasses the
three reasons for nonrenewal in Policy DOAD, previously set forth; (4) the Petitioner waived any defect in the notice by
participating in the March 29 hearing; and (5) its decision is supported by substantial evidence.

I. "Community Feeling of Incompetence"

Section 21.203(b) of the TCNA instructs 1'.I1 boards of trustees to establish policies which establish reasons for
nonrenewal. Section 21.204 requires the local board of trustees to give a teacher written notice of a proposed nonrenewal,
which contains a statement of all the reasons for the proposal. Viewing the Act as a unified procedural scheme for dealing
with the nonrenewal of term contracts, it must be concluded that a teacher cannot be nonrenewed for a reason of which
he or she has not been given fair notice.

"Community feeling of incompetence" is the only reason for nonrenewal of which Petitioner was given written notice. It
is a reason inconsistent with the purposes of the TCNA. Section 21.203(b) of the Act, which requires the local board of
trustees to establish reasons for nonrenewal, has no purpose if not to provide the individual teacher with advance notice
of what he or she must do in order to retain his or her position with the school district. For example, a teacher might be
reasonably required to do such things as prepare lesson plans; keep proper records; be punctual; be competent; avoid
activities which could impair or diminish the teacher's effectiveness in the district; and cultivate a working relationshipl 51
with parents, the community, and colleagues. However, a teacher cannot reasonably be required to control the community's
perception of his or her competence as an instructor.

A holding to the effect that a school district may nonrenew a teacher for a reason over which the teacher has no control
would render § 21.203 an extremely futile piece of legislation; the teacher's situation would he only negligibly improved
over the days in which he or she could be nonrenewed for no reason or any reason, with the exception, of course, of a reason
prohibited by federal law. A teacher could be nonrenewed for the reason that "the superintendent (or principal, or one
member of the board of trustees) thinks you are incompetent." As long as the superintendent (or principal, or one member
of the board of trustees) were to state under oath that, in his or her opinion, the teacher in question was incompetent, that
one line of testimony, by itself, could serve as sufficient evidence to support the board of trustees' nonrenewal decision on
appeal to the Commissioner.

The TCNA does not contemplate such a roundabout method of nonrenewing a teacher; it was not enacted to allow the
nonrenewal of a competent 1 61 (or excellent) teacher based on second hand accounts of the talcs of children which grow
more exaggerated with each retelling. In short, the community's perception of a teacher's competence is irrelevant. What

                                                    MARK ROBINETT
                                                                                                                           Page 3 of 5
                                              1983 TX Educ. Agency LEXIS 174, "6


is relevant is whether or not the teacher actually is competent and the evidence pertaining to that issue. "Community feeling
of incompetence," therefore, is not a permissible reason for nonrenewal and it is unnecessary to decide whether there was
substantial evidence before the Board of Trustees in support of that reason.

2. Actual Incompetency

In her brief concerning the issue of substantial evidence, Petitioner acknowledges that she received fair notice of the reason
of "incompetency." It must, therefore, next be determined whether there was substantial evidence before the Board of
Trustees to support this reason.

The evidence at the hearing before the Board of Trustees in support of the Board's decision consisted of the following: (I)
the superintendent's testimony concerning his opinion that the Petitioner was incompetent, based on "items presented to
[him]" by school board members (Tr. 9); (2) the testimony of parents in the community concerning their reasons for
believing 1'71 that Petitioner was incompetent, based on statements made to them by their children; and (3) Petitioner's
failure rate (Resp. Ex. H).

All of the above evidence, except the failure rate, is merely hearsay: the superintendent's testimony is based on information
related to him by members of the Board of Trustees, which was related to them by parents in the community; and the
parents, in turn, based their conclusions on statements made to them by their children.

Although Petitioner's failure rate, which was not based on hearsay, was the highest in the school (Tr. 68), that fact alone
does not necessarily indicate that Petitioner is incompetent. The most failing grades in the school district could just as well
be assigned by an excellent teacher with high standards. In addition, if the grades assigned by a teacher are to be taken as
an indication of a teacher's competence, a teacher who assigns every student an "A" could use that fact as evidence that
he or she had attained a high level of teaching competence.

Also introduced into evidence before the Board of Trustees were the administration's evaluations of Petitioner, the
consideration of which by the Board is required by § 21.202 of 81 the TCNA. The most recent evaluation, dated February
16, 1982, is generally supportive of the Petitioner.

Under the circumstances, it must be concluded that the Board of Trustees' decision was not based on substantial evidence
of actual incompetency.

3. Applicability of the TCNA to Petitioner

The only contention of Respondent 1-91 that has not been resolved to this point is its assertion that Petitioner is not entitled
to the protections of the TCNA because she had signed her contract for the 1981-82 school year before the Act took effect
on August 31, 1981. As of the effective date of the TCNA, the local board of trustees became obligated to comply with
the Act's terms if it should "choose not to renew the employment of any teacher employed under a term contract effective
at the end of the contract period." The date on which the teacher signed his or her contract does not affect that obligation
in any way.

Respondent's Exceptions to Proposal

In its Exceptions to the Hearing Officer's Proposal for Decision, Respondent contends that the hearsay rule did not apply
to the local school board hearing in this case, inasmuch as § 21.205(b) of the TCNA authorizes the local school district to

• Even were the evaluations otherwise, it should be noted that they would not constitute substantial evidence in and of themselves in
a case in which the person making the evaluation does not testify. The thrust of the TCNA is to require (I) administrators to conduct
honest evaluations, (2) local boards of trustees to consider those evaluations prior to giving notice of any proposed nonrencwals, and (3)
the evaluators to appear at any hearing before the local boards of trustees and testify concerning the accuracy of and the basis for the
evaluations. This observation should not be construed to mean that a local board of trustees is bound by the evaluation and testimony
of an evaluator or that this is the only means by which substantial evidence may be adduced at a local hearing: however, this process
is certainly one of the principal concerns of the Act.

                                                         MARK ROBINETT
                                                                                                                  Page 4 of 5
                                           1983 TX Educ. Agency LEXIS 174, *9


conduct the required hearing in accordance with rules promulgated by the district. Respondent's Policy DOAD states that
"the Board may consider only such evidence as is presented at the hearing and need consider only such evidence as it
believes to be fair and reliable." Respondent, therefore, argues that it "could properly consider I 1111 any evidence presented
at the hearing which the board believed to be fair and reliable, whether hearsay or not."

Regardless of the manner in which the local board of trustees structures its hearings, however, § 21.207(a) of the TCNA
authorizes the Commissioner of Education to review the decisions of local school boards in nonrenewal cases on a
substantial evidence basis. It is well established that when the legislature uses a word, such as "evidence," which has a
settled legal significance, it is presumed to have been used in that sense. 1-ira National BanA nl Mineola I, Farmers
Suite Bank. 417 5.11.2,1 117. 329 (Tex. Civ. App. -- Tyler 1967, writ rerd n.r.e.).

In the present case, it is not necessary to define precisely what "evidence" is, because it is clear what "evidence" is not:
"In Texas the hearsay rule applies in administrative hearings, just as it does in court. And it is a rule that forbids the
reception of evidence rather than one that merely goes to the weight of the evidence."                 Spoti»Iton.. Sitriov4.c
Avcnciarion.     5.11:201 INN. /56 (To. 19721.

Respondent contends, however, that the hearsay in this case should L. I i I he accorded some weight, because it was not
objected to even though it could have easily been refuted if not true. Respondent cites              li
(Tex. Civ. App. -- Amarillo 1963, writ rerd n.r.e.) in support of this proposition. That case, however, is contrary to the
otherwise well-established rule in Texas that hearsay evidence is "wholly incompetent and without probative force, and can
never form the basis for establishing a cause of action, finding of fact, or judgment of court, whether objected to nor not."
White r. White. 590 S.11:211 557.559 (Tex. Civ. App. -- Houston [1st Dist.] 1979, no writ). See also Aetna Insurance
Company r. Klein, 325 S. W.2sl 376, 379 (Tex. 19591:                  Ii. co, v. Thonlii,. 57') 11:2(/ 46. 4' (TM Civ. App.
-- Beaumont 1979, writ ref d n.r.e.); Alain Think   Trust 11     571 S.11:241 222. 224 (Tex. Civ. App. -- El Paso 1978, writ
ref d n.r.e.); Perkins r. Spritiontn. 557 S. WI/    345 (Tex. Civ. App. -- Austin 1977, writ recd n.r.e.); 11,tnAan Artm/mc
Corp I. Pal-Mde Cony. ca.. 554 S.41:2(1 712. 723 I921 (Tex. Civ. App. -- Dallas 1977, writ reed n.r.e.); 1 .rtited Set tic e.■
.tutoutobile As.5'n t. Ratterree. 512 S,U 2d 30..1 (Tex. Civ. App. -- San Antonio 1974, writ recd n.r.e.); !bight 5 t. Suite.
51)5 S.;1:2t1 /67. /69 (Tex. Civ. App. -- Corpus Christi 1974, writ ref' d n.r.e.); Clil, I. Dunn. -177 S 2,1 (vii. 642 (Tex.
Civ. App. -- Waco 1972, no writ).

In addition, in Hamill. tt AricAets Ginnitn; Company. -196 S.11:241 755. 792 (Tex. Civ. App. -- Amarillo 1973, no writ), the
same court that decided Marion, on which Respondent relies, stated, in regard to certain hand printed notations on a
document, "The hand printed notations arc hearsay and inadmissible as proof of any fact . ..; and the notations appearing
on the drafts admitted into evidence with or without objection are incompetent to establish any fact or to form the basis
of a judgment." That court had previously held to the same effect in Seunp.tan I. Aiwa Oil Col voration. 476 S.11:11 431).
    (Tex. Civ. App. -- Amarillo 1972, no writ). Respondent's contention that hearsay testimony can be considered by 14'131
the Commissioner in support of a nonrenewal decision is, therefore, unpersuasive.

Finally, in regard to hearsay, Respondent argues that the testimony of Mrs. Bays (Tr. 31) that her daughter came home
crying and upset because Petitioner had "hollered" at one of her friends, was admissible under the excited utterance
exception of the hearsay rule. To constitute an excited utterance, however, the statement must be made before there has been
time to contrive and misrepresent; it must be "made under circumstances which raise a reasonable presumption that it is
the spontaneous utterance of thought created by or springing out of the [exciting] occurrence itself and, so to speak,
becomes a part of the occurrence." 1                                                                              In addition,
there must be proof independent of the excited utterance, of the exciting occurrence,            In the present case, the only
evidence of the occurrence is the hearsay statement which, like the proof at issue in Michling, "is attempting to lift itself
by its own bootstraps." Id. Mrs. Bays' testimony, therefore, is inadmissible even under a I 14 liberal construction of the
excited utterance exception to the hearsay rule.

One other exception which merits response is Respondent's contention that applying the TCNA to a contract signed before
the Act's effective date constitutes a violation of the provisions of the Texas and United States Constitutions which prohibit
impairment of contractual obligations. Respondent argues as follows:

                                                     MARK ROBINETT
                                                                                                                 Page 5 of 5
                                         1983 TX Educ. Agency LEXIS 174, *14


The general rule is that operational policies promulgated by a school board prior to making a contract of employment with
a teacher form part of the contract, and the teacher's employment is subject thereto. ion c n 1. Colollot liblepenikva School
111 ■1,1 1, 6         2_1 (Tex. Civ. App. -- Corpus Christi, 1980, reid n.r.e.). It is undisputed that under the policies and
statutes in effect as of June 21, 1981, Respondent could lawfully nonrenew Petitioner's term contract in its sole discretion
without any reasons. 11 1 1S. I LP IT /0 1: COM. S               . At the time the contract was executed, Petitioner had no
"property" interest in employment beyond the 1980-81 (sic) school year, and Respondent had the right to nonrenew the
contract. The 1 151 proposed retroactive application of the Term Contract Nonrenewal Act would impermissabty (sic)
impair Respondent's contractual rights to spend local funds on teachers the board chose to renew.

There is no evidence, however, that Respondent had promulgated any operational policies prior to making the contract of
employment with Petitioner which would allow it to nonrenew Petitioner's term contract at its sole discretion without any
reasons.

As for Respondent's reliance on the fact that Petitioner had no property interest under State law in employment beyond
the 1981-82 school year at the time the contract was executed, it must be determined whether Respondent had a vested
interest in Petitioner's status at the time the contract was signed. Wood I. Lot cu. 313 1'.5 362. 371 11V-111. There is,
however, no property right or vested interest in any rule of common law; the Constitution does not forbid the creation of
new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative objective, despite
the fact that "otherwise settled expectations" may he upset thereby.
                       1.161

Respondent's expectation, therefore, that, under common law, Petitioner would continue to have no property interest in
employment beyond the 1981-82 school year, was a mere expectancy, contingent on the action (or inaction) of the
legislature. Upon the enactment of the TCNA, that expectation ceased and Respondent became bound to honor Petitioner's
newly created statutory rights.

Conclusions of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as State
Commissioner of Education, I make the following Conclusions of Law:

I. Petitioner was entitled to the benefits afforded by the Term Contract Nonrenewal Act.

2. Petitioner could not properly be nonrenewed pursuant to the Term Contract Nonrenewal Act because of a "community
feeling of imcompetcncy.

3. There is not substantial evidence of actual incompetency.

4. Petitioner's appeal should be, in all things, GRANTED.

ORDER

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of
Law, in my capacity as State Commissioner of Education, it is hereby

ORDERED that Petitioner's appeal be, in all things, GRANTED. I 17 1

SIGNED AND ENTERED this 27th day of Jan., 1983.




                                                    MARK ROBINETT
    TAB No. B-2

Kathy Anderson v. Jacksonville
 Independent School District
                                    1997 TX Educ_Lb
                                                 17ency LEXIS                     78

                                      Copyright (c) 1997 Texas Education Agency

                                                       I 997; 1997

                                              DOCKET NO. 142-R 1 -397

Reporter
1997 TX Educ. Agency LEXIS 78


KATHY ANDERSON ; v. ; JACKSONVILLE INDEPENDENT SCHOOL DISTRICT

Core Terms

nonrenewal, hearsay, teacher, school year, notice, good cause, coach, recommend, terminate, substantial evidence to
support, girl's

Panel: 1 11 MIKE MOSES, COMMISSIONER OF EDUCATION


Opinion

DECISION OF THE COMMISSIONER

Statement of the Case

Petitioner, Kathy Anderson, appeals Respondent's, Jacksonville Independent School District's, decision to nonrenew her
contract.

Christopher Maska was the Administrative Law Judge appointed by the Commissioner of Education to preside over this
cause. Petitioner was represented by Mr. Kevin F. Lungwitz, Attorney at Law, Austin, Texas. Respondent was represented
by Mr. John C. Hardy, Attorney at Law, Tyler, Texas.

Findines of Fact

I. On March 3, 1997, Respondent Jacksonville Independent School District voted to nonrenew Petitioner's, Kathy
Anderson's, I995-1996 contract.

2. On March 24, 1997, Petitioner filed her Petition for Review.

Discussion

Jurisdiction

Petitioner contends that Respondent failed to give her notice of proposed nonrenewal as required by
  2I.2w) ibi. Petitioner points to the fact that the notice states:

    YOU ARE HEREBY NOTIFIED that the Superintendent of Jacksonville ISD has recommended to the board of
    trustees at a lawfully called meeting of the Board of Trustees on April 3, 1996, that your employment 1 2] contract
    as teacher/coach in the District not be renewed for the succeeding school year.

This notice nowhere states that the board adopted the recommendation. However, the document is entitled "NOTICE OF
PROPOSED CONTRACT NONRENEWAL." It states, "This notice is given pursuant to the provisions of               21.206

                                                   MARK ROBINETT
                                                                                                                Page 2 of 5
                                          1997 TX Educ. Agency LEXIS 78, *3


(j the Texas- Ethitittion Code, as amended in 1995." The document is signed by the President of the board, as representing
the board. Further, the board did, in fact, vote to propose nonrenewal of Petitioner's contract. While the notice is not a
model of clarity, it is a notice of proposed nonrenewal. It is also an official notice from the board of this fact. The
requirements of                                    are met by the notification.

Must A Principal Propose

Petitioner contends that a district may not nonrenew a teacher unless a principal recommend nonrenewal. The
Code     11.21)2 (h ) reads:


    Each principal shall:

    (6) recommend to the superintendent the termination or suspension of an employee assigned to the campus or the
    nonrenewal I .1] of the term contract of an employee assigned to the campus; and.

While principals are given the authority to recommend teachers for nonrenewal, there is nothing to indicate that this power
is exclusive. In fact, the Education Code is clear that a superintendent, not a principal, initiates a nonrenewal:

    The duties of the superintendent include:

    (4) initiating the termination or suspension of an employee or the nonrenewal of an employee's term contract.

"Tedc Lir/ea/ion CO3/e    //.21)/ (d), Principals are to recommend nonrenewal to superintendents, but a decision of a
principal not to recommend nonrenewal does not deprive a superintendent of the authority to initiate a nonrenewal
proceedings against a teacher's contract.

Substantial Evidence

Petitioner contends that there is not substantial evidence to support the reasons for proposed nonrenewal. In particular,
Petitioner contends that Respondent's case is based on hearsay that was admitted over objection, Petitioner is correct that
properly objected to hearsay cannot support a board's decision. Further, there is much properly objected to hearsay that was
allowed in. Mr. Mooring's 1 41 statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 23). The girl's
basketball coach's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 32). Parents' statements to
Mr. Long were improperly held not to constitute hearsay. (Tr. 76). Pages 4 and 5 of Administration Exhibit 6 was
improperly held not to he hearsay. (Tr. 81, 83). The question to be decided is whether there is substantial evidence to
support the board's decision excluding properly objected to hearsay.

Petitioner's contract with the district was for the 1995-1996 school year. Events that occurred earlier than the 1995-1996
school year cannot constitute reasons for nonrenewing the 1995-1996 contract unless the district was not aware of the
events when they occurred. Successfully hiding serious failings will not be rewarded. While failings in a previous contract
term cannot usually support action against the current contract, the fact that a failing occurred, a teacher was reprimanded,
and the teacher committed the same act in the current term shows a willfulness that makes the present violation more
serious. In this case, Respondent alleges violations such as studying 1 51 instead of coaching during tennis tournaments,
which occurred in the previous contract period, were known to the district, and were not repeated. These violations cannot
form the basis for nonrenewing the 1995-1996 contract.

Petitioner held a dual assignment contract: teacher and coach. Petitioner taught math. There is not substantial evidence to
support the claim that Petitioner was not a good math teacher or that she violated policy in relation to teaching math.

Petitioner was the girl's volleyball coach and the assistant girl's basketball coach during the 1995-1996 school year. While
the evidence is conflicting and at times sparse, there is substantial evidence to support the reasons for nonrenewal. For
example, there is substantial evidence that Petitioner did not maintain good effective working relationships with the girl's
basketball coach and with parents.

                                                    MARK ROBINETT
                                                                                                                   Page 3 of 5
                                            1997 TX Educ. Agency LEXIS 78, *5

Petitioner contends that she was not given a chance to remediate. There is no right to remediation. However, if a chance
to remediate is not given, a violation may not be sufficiently serious to support nonrenewal. Remediation works in different
but related ways in termination and nonrenewal cases. In a termination case, concerning 1'61 a term contract, the board
must show either good cause or financial exigency. Good cause is a high standard. It is met when a teacher's actions are
so serious as to destroy a vested property right. In a nonrenewal case, the standard is not as high as good cause. A vested
property right is not destroyed when a district decides not to offer a teacher a new contract. The standard in such a case
is whether the teacher violated the standards established by the district I. Tends nhreatirrii Code § 21.203. Since the
standard for nonrenewal cases is lower than the standard for termination cases, a lessor violation is sufficient to support
board action. Hence, if a violation was only sufficient to support a termination after remediation was offered, the same
violation without an opportunity for remediation may be sufficient to support a nonrenewal. In this case, Petitioner was
given some opportunities for remediation and where the opportunity was not given, the violations 1 71 were sufficient to
support a nonrenewal.

Delay in Decision

Petitioner contends that even if Respondent's decision to nonrenew is upheld, that she should be paid for the 1996-1997
school year up until the time the board decided to nonrenew her. Petitioner, however, does admit that she waived the
requirement that the hearing be held within 15 days. L.                Coi/c 21.21r. By giving a blanket waiver, Petitioner
consented to the possibility that the decision would not be complete before the start of the next school year. A better practice
would he to agree on a specific date for holding the hearing. However, just because a teacher waives the requirement that
a hearing be held within 15 days does not mean that a school district can choose not to hold a hearing. A TC ki(3 Edit/ iltilon
               cause of action would lie if a school district refused to set a hearing within a reasonable time. In this case,
the evidence does not indicate Respondent unreasonably delayed the hearing.

Because Respondent gave Petitioner notice of proposed nonrenewal, Respondent did not have to offer Petitioner a
1996-1997 1 81 contract. klas Lim-ea/on Code_ 21.2H(,. Since Petitioner has no 1996-1997 contract, Respondent cannot
be required to pay Petitioner for the 1996-1997 school year unless it can be shown that the nonrenewal was not properly
done. Respondent is not liable for paying Petitioner a salary for the 1996-1997 school year just because the board decision
did not decide the nonrenewal issue until after the start of the next school year Additionally, Petitioner was employed by
another district for the 1996-1997 school year.

Additional Evidence

Petitioner contends that because Petitioner's principal no longer worked for the Respondent he was not present at the
hearing on the merits. Further, Petitioner notes that neither party to the local hearing could subpoena him. This case was
heard by the board, not by a certified hearing examiner. The Education Code does not give a board subpoena power.
Petitioner alleges that this is a procedural irregularity, and that based on -/c‘i ■ Lim         CoA s          additional
evidence can be allowed. However, the Agency's rules concerning allowing additional evidence to be taken 1*91 require
good cause to be shown. i 9 TAC § 157.1071. Petitioner's allegations do not amount to good cause for reopening evidence.
The taking of additional evidence was not permitted in this case.

Conduct of Hearing

Petitioner objects to the conduct of the hearing, alleging that the Board President asked Petitioner's counsel to stop
objecting and made inconsistent rulings on hearsay objections that favored Respondent. As to the request to stop objecting,
this was not proper. However, the exchange ended as follows:

     MR. LUNGWITZ: Respectfully, Mr. Stone, I'll object to anything I think needs to be objected to tonight to protect
     Ms. Anderson's rights.
     MR. STONE. Okay. Okay.

1   Additionally, there are procedural safe guards in nonrenewal cases. A violation of these procedural standards can lead to the
requirement of offering the teacher a new contract.

                                                     MARK ROBINETT
                                                                                                               Page 4 of 5
                                          1997 TX Educ. Agency LEXIS 78, *9

(Tr. 81). Mr. Lungwitz continued to object. Mr. Stone did not convince him not to protect his client's interest.

As pointed out above, several incorrect rulings regarding hearsay were made. These rulings did favor Respondent, but the
Commissioner has the authority to correct these errors. The board President was under the impression that administrators
who were told things in the course and scope of their employment could re-tell what they had heard. This is incorrect. Legal
errors were made regarding rulings 1'11)1 on objections. Incorrect rulings that are corrected cannot lead to overturning a
board's decision.
Board Member's Statement

Petitioner objects to a board member's statement concerning race:

    Mr. MONTGOMERY: And I absolutely, 110 percent, resent the fact that this was any kind of a racial thing at all.
    It had absolutely nothing to do with the color of anyone's skin. And I just want to say I resent that. That is not
    what this district is all about.

(Tr. 218). The statement itself shows that after hearing the evidence, the board member concluded, "It had absolutely
nothing to do with" race. Having found the allegation to be meritless, the board member stated he resented that the
allegation was made. But even if one board member had said he would not even consider a racial discrimination argument,
this would not change the result. The board vote was 6-0. A 5-1 vote would not change the outcome.
Conclusion

Petitioner received a fair hearing and Respondent's decision is not arbitrary and capricious or unlawful. Respondent's
decision to nonrenew Petitioner's contract is affirmed. Petitioner is not entitled to any compensation for the 1996-1997
school year from Respondent.

1: tit Conclusions Of Law

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact, in my capacity as
Commissioner of Education, I make the following Conclusions of Law:

1.The Commissioner of Education has jurisdiction of this appeal pursuant to k.,;s Eihrt raisin Cod( § 21.301 .

2. The notice of proposed nonrenewal complies with Pm's Elm alio', 01/41,.       2I.206.

3. Respondent made a number of erroneous evidentiary rulings:

    Mr. Mooring's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 23). The girl's
    basketball coach's statements to Dr. Turner were improperly held not to constitute hearsay. (Tr. 32). Parents'
    statements to Mr. Long were improperly held not to constitute hearsay. (Tr. 76). Pages 4 and 5 of Administration
    Exhibit 6 were improperly held not to be hearsay. (Tr. 81, 83).

These rulings are reversed. Except for the erroneous rulings noted, Petitioner received a fair hearing.

4. Respondent's decision to nonrenew Petitioner's contract is supported by substantial evidence.

5. A violation that occurred prior to the current contract 1 :121 cannot be used to nonrenew the current contract unless the
district did not know of the violation at the time it occurred. While failings in a previous contract term cannot usually
support action against the current contract, the facts that a failing occurred, a teacher was reprimanded, and the teacher
committed the same act in the current term show a willfulness that makes the present serious violation more serious.

6. Petitioner has failed to show good cause for reopening evidence.

7. Petitioner is not entitled to pay for the portion of the 1996-1997 school year that passed before Respondent voted to
nonrenew her 1995-1996 contract.

                                                   MARK ROBINETT
                                                                                                            Page 5 of 5
                                            1997 TX Educ. Agency LEXIS 78, "12

8. There is no right to remediation. In some circumstances, a violation without remediation will not support nonrenewal,
but the same violation with a chance to remediate will support a nonrenewal.

9. Respondent's decision to nonrenew Petitioner's contract is not arbitrary and capricious, or unlawful.

10. The standard for determining most terminations, good cause, is not necessarily the standard for determining
nonrenewals. A board, however, could adopt good cause as its standard if it wished to. A board can also adopt a standard
lower than good cause I 131 for nonrenewals.

1 I. Properly objected to hearsay may not be considered when determining whether substantial evidence supports a
nonrenewal.

12. Petitioner's appeal should be denied.

ORDER

After due consideration of the record, matters officially noticed, and the foregoing Findings of Fact and Conclusions of
Law, in my capacity as Commissioner of Education, it is hereby

ORDERED that Petitioner's appeal be, and is hereby, DENIED.

SIGNED AND ISSUED this            day of —, 1997.




                                                   MARK ROBINETT
          TAB C

Board Hearing Procedures Policy
       DFBB (LOCAL)
Los Fresnos CISD
031906

TERM CONTRACTS                                                                       DFBB
NONRENEWAL                                                                         (LOCAL)


                     not later than the 15th day after the date the employee received
                     the notice of proposed nonrenewal.
                     When a timely request for a hearing on a proposed nonrenewal is
                     received by the presiding officer, the Board shall notify the employ-
                     ee whether the hearing will be conducted by the Board [see HEAR-
                     ING BY THE BOARD, below] or an attorney designated by the
                     Board [see HEARING BY AN ATTORNEY DESIGNATED BY THE
                     BOARD, below].
                     In either case, the hearing shalt be held not later than the 15th day
                     after receipt of the request, unless the parties mutually agree to a
                     delay. The employee shall be given notice of the hearing date as
                     soon as It Is set.
HEARING BY THE       Unless the employee requests that the hearing be open, the hear-
BOARD                ing shall be conducted In closed meeting with only the members of
                     the Board, the employee, the Superintendent, their representa-
                     tives, and such witnesses as may be called in attendance. Wit-
                     nesses may be excluded from the hearing until called to present
                     evidence. The employee and the administration may choose a
                     representative. Notice, at least five days In adVance of the hearing,
                     shall be given by each party intending to be represented, including
                     the name of the representative. Failure to give such notice may
                     result In postponement al the hearing.
  HEARING            The conduct of the hearing shall be under the presiding officer's
  PROCEDURES         control and shall generally follow the steps listed below:
                     1.   After consultation with the parties, the presiding officer shall
                          impose reasonable time limits for presentation of evidence
                          and closing arguments.
                     2.   The hearing shall begin with the administration's presentation,
                          supported by such proof as it desires to offer.
                     3.   The employee may cross-examine any witnesses for the ad-
                          ministration.
                     4.   The employee may then present such testimonial or docu-
                          mentary proof, as desired, to offer in rebuttal or general sup-
                          port of the contention that the contract be renewed.
                     5.   The administration may cross-examine any witnesses for the
                          employee and offer rebuttal to the testimony of the employ-
                          ee's witnesses.
                     6.   Closing arguments may be made by each party.
                     A record of the hearing shall be made.


DATE ISSUED: 10/4/2012                                                                4 of 5
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