      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00584-CV



                                    Don Madden, Appellant

                                                 v.

                       State Board for Educator Certification, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. D-1-GN-10-003843, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                              MEMORANDUM OPINION


               The State Board for Educator Certification issued an unpublished censure to

former school principal Don Madden’s Texas Educator Certificate after determining that he violated

the Texas Educators’ Code of Ethics by using an improper amount of force to administer

corporal punishment to J.S., a student. The district court affirmed the Board’s order. Madden

appeals, asserting that the Board’s final order, which amended an underlying proposal for decision

put forth by an administrative law judge, did not provide an adequate explanation for departing from

the ALJ’s proposal. Madden also asserts that the Board lacked authority to sanction him in light

of a statutory exception from professional sanctions for an educator’s justifiable use of corporal

punishment. We will affirm the district court’s judgment.
                                         BACKGROUND

                Don Madden was a high school principal with the Cumby Independent School

District in northeast Texas.1 Like many Texas school districts, Cumby ISD permits the use of

corporal punishment of students in certain situations. The district policy limits corporal punishment

to spanking or paddling that is “reasonable and moderate” and is not administered maliciously

or for revenge. The policy further requires that before administering corporal punishment, the

educator must consider factors such as the student’s size, age, and condition; the type of instrument

to be used; the amount of force to be used; and the part of the body to be struck. The policy also

incorporates a Texas Penal Code standard on the proper use of force, stating that an educator’s use

of force against a student is justified “when and to the degree the teacher or administrator reasonably

believes the force is necessary to further the purpose of education or to maintain discipline in

a group.” See Tex. Penal Code § 9.62.

                Madden administered corporal punishment for two separate disciplinary infractions

to seventh-grade student J.S., giving him two “swats” on his buttocks with a wooden paddle. J.S.

was a slightly built twelve-year old and was wearing gym shorts when the swats were administered.

It is undisputed that J.S. had an extensive history of poor behavior at school and had received

corporal punishment several times before this incident, including swats from Madden. On this

occasion, Madden was preparing to send J.S. to in-school suspension that would be followed

by alternative school; however, J.S.’s father called to state his preference that J.S. receive corporal

punishment.



       1
           Cumby High School is composed of students from seventh through twelfth grade.

                                                  2
                After Madden administered the swats, J.S. developed large red marks and bruising

on his buttocks. When he got home from school that afternoon, J.S. reported to his mother that he

was in pain, and she took J.S. to the emergency room. The emergency room staff noted “moderate

to severe” early bruising on J.S.’s buttocks that was pink, red, and purple. Emergency room staff

notified Child Protective Services of the incident and instructed J.S. to take over-the-counter pain

medication and soaks in cool water. An emergency room record notes that J.S.’s mother reported

the incident to police, who took photos of J.S.’s bruises. Four days later, J.S. followed-up with his

family doctor, who noted yellow and brown bruises on J.S.’s buttocks that were healing. About the

same time, J.S.’s mother took photos of bruises on J.S.’s buttocks.2 The photos taken by police and

J.S.’s mother depict the progression of J.S.’s condition from the day of the swats until four days later.

                The State Board for Educator Certification, which is charged with regulating

and overseeing all aspects of public-school educators’ standards of conduct, subsequently filed

a disciplinary action alleging that Madden violated the Texas Educators’ Code of Ethics and

requesting that his Texas Educator Certificate be suspended for one year. The matter proceeded to

a contested-case hearing during which a number of witnesses were called before an administrative

law judge at the State Office of Administrative Hearings.

                Dr. Annette B. Horne, J.S.’s family doctor, testified at the hearing by deposition. She

stated that she saw J.S. for an examination and documentation of injuries four days after he

was paddled at school. Horne reviewed J.S.’s medical records and noted that he had not previously




        2
         A pair of photos showing J.S.’s healing bruises have date stamps indicating that they were
taken four days after the incident.

                                                   3
been diagnosed with any bruising or bleeding disorder. Based on the extent of J.S.’s injuries, Horne

opined that “excessive force” was used on J.S.

                 Dr. Matthew Cox, an expert who works with Child Protective Services, was next

to testify by deposition. Cox is the Medical Director of a child-abuse assessment program at

Children’s Medical Center in Dallas and an Assistant Professor of Pediatrics at the University of

Texas Southwestern Medical School. CPS asked Cox to consult on J.S.’s case by assessing J.S.’s

injuries as depicted in photos and determining how much force it would take to inflict those injuries.

Cox replied that he could not quantify the exact amount of force used, but according to the American

Academy of Pediatrics, non-accidental traumas leading to skin abnormality for more than 24 hours

are “abusive injuries.” Cox opined that “reasonable physical discipline does not cause this extent

of bruising that lasts several days.” After reviewing the photos CPS provided, Cox reviewed J.S.’s

medical records.3 Cox noted that in another case he declined to make a finding of abuse because the

injured child had an underlying bleeding problem, but here Cox was able to rule out that possibility.

Cox testified that he saw significant bruising to J.S.’s buttocks, more on the right than on the left,

in a pattern consistent with the relayed history of being struck with a wooden paddle. Cox further

testified that J.S.’s degree of bruising was “severe” and that injuries of this severity “are consistent

with child physical abuse.”

                 Martin Braddy, the Hopkins County District Attorney, also testified by deposition.

Braddy described the process through which he concluded, by criminal prosecution standards,

that J.S.’s corporal punishment was administered reasonably and that Madden should not be



        3
            About a year after the incident, Cox also evaluated J.S. at the clinic.

                                                    4
prosecuted. In deciding whether to charge Madden with assault or injury to a child, Braddy reviewed

photographs of J.S.’s buttocks and discussed this case with J.S.’s parents, the Cumby police officer

who conducted an investigation, and CPS staff. Braddy did not speak with any medical personnel.

Braddy opined that Madden had “no culpable mental state” or intent to commit a crime

against a child but only an intent to discipline. Braddy also noted that the corporal punishment

was administered to an appropriate part of J.S.’s body, i.e., his buttocks, and that the bruising

that appeared to be the result of paddling was in the expected place. Braddy acknowledged that he

considers only the Penal Code, not the Education Code, in deciding whether to prosecute criminal

cases and stated that under his understanding of section 9.62 of the Penal Code, a person who is

responsible for maintaining discipline at school may use reasonable force against a student to

maintain and enforce discipline.

               CPS investigator Joe Richard Teer, a certified police officer, appeared at the

hearing to describe CPS’s involvement in the case. He testified that he interviewed “everybody

involved” regarding J.S.’s allegations of physical abuse. He said CPS found “reason to believe” that

physical abuse had occurred “because [J.S.] was injured and Mr. Madden caused those injuries.”

Teer acknowledged that CPS uses a standard from the Family Code to determine what

constitutes child abuse. He stated that he had previously investigated another, unrelated case of

corporal punishment resulting in bruising and that CPS found there was child abuse in that case as

well because of the bruising. He concluded that whether Madden reasonably believed that the

force he used was necessary to discipline J.S. did not matter when applying the CPS standard of

determining whether child abuse occurred.



                                                 5
               Claudette Caldwell, an administrative assistant at Cumby ISD who witnessed J.S.’s

swats, testified by telephone. She recalled that J.S. did not want the swats, so Madden called J.S.’s

father, who called back and consented. Caldwell said that Madden did not seem angry and did

not appear to hit J.S. harder than he had any other student. She did not recall J.S. crying. Caldwell

stated that if she had seen Madden do something inappropriate or excessive, she would say so.

               Madden appeared at the hearing and testified that he had been a principal with

Cumby ISD for five years. He stated that the school district’s policy allows corporal punishment by

paddling and requires that it be “reasonable and moderate.” Madden also stated that he administered

corporal punishment to J.S. on the occasion at issue and other instances beforehand. J.S.’s complaint

was the first time anyone had ever complained about Madden’s use of corporal punishment. When

J.S. first arrived at the school office on the day in question, Madden talked to him about his

disciplinary infractions, and J.S. told Madden that he did not want swats. Madden called J.S.’s

father but got no answer, so Madden decided to send J.S. to in-school suspension and thereafter

to alternative school. J.S.’s father called back shortly afterward and told Madden to administer the

swats to J.S. Madden denied being upset with J.S. when he administered the swats, but Madden

could tell that J.S. was angry when he left. Madden said J.S. did not cry and did not appear to be

crying in a security video that showed him as he left the school office. Teachers told Madden that

J.S. actively participated in athletics later that afternoon, and Madden was unaware of J.S. making

any complaint of injury to the staff. Madden testified that the force he used in administering the

punishment that day was the force he believed was necessary, and he denied using force that was any

different from the force he had used at other times in administering swats. He also testified that he

had seen photographs of J.S.’s injuries but did not know for certain that he caused those injuries.

                                                 6
               J.S. also testified at the hearing. He acknowledged that he had discipline problems

since he began school at Cumby ISD, receiving detentions, in-school suspensions, alternative-school

placement, and swats, including swats from Madden on three or four occasions. J.S. denied any

injury or bruising from swats on those prior occasions. On the day in question, Madden explained

to J.S. why he was in trouble, had Mrs. Caldwell come into the office as a witness, and gave J.S. the

swats. J.S. said he felt “a lot of pain” after the first swat and asked for a minute to rest. After a

break, Madden gave J.S. the second swat, which felt “just like the first one.” J.S. went from the

office to the restroom, where he testified that he waited for thirty minutes for class to end because

he did not want his classmates to see him crying. J.S. then went to his last class, physical education,

but testified that he did not participate because of his pain. He walked home after school and waited

for his mother, who took him to the emergency room. J.S. agreed that photographs of his buttocks

accurately depicted his bruising. He testified that at first he “felt like his bottom was on fire” and

sitting was painful. A few days later the pain remained, but he could sit.

               After the contested-case hearing, the ALJ issued a proposal for decision with

findings of fact and conclusions of law. The ALJ found, based on the doctors’ opinions, that J.S.

sustained moderate to severe bruising on his buttocks, that the bruising was a physically abusive

injury resulting from the use of excessive force, and that the bruising remained for one week.4

Consequently, the ALJ concluded that Madden violated standards 3.2 and 3.5 of the Texas

Educators’ Code of Ethics by knowingly treating a student in a manner that adversely affected the


       4
         Madden did not challenge the ALJ’s fact findings, which are supported by the record and
adopted in the Board’s final order, and which this Court accepts as established. See Helbing v. Texas
Dep’t of Water Res., 713 S.W.2d 134, 137 (Tex. App.—Austin 1986, no writ) (accepting agency’s
unchallenged finding of fact as established on appeal).

                                                  7
student’s learning, physical health, mental health, or safety and by physically mistreating a student.

See 19 Tex. Admin. Code § 247.2(3)(B), (E) (State Bd. for Educator Certification).5 Nevertheless,

the ALJ determined that under section 22.0512 of the Education Code—specifically, the “subjective

nature” of the standard on the proper use of force—Madden could not be sanctioned because

he “reasonably believed” the force used was necessary to maintain discipline. See Tex. Educ.

Code § 22.0512(a); Tex. Penal Code § 9.62.

                When the Board subsequently issued its final order, it amended one of the ALJ’s

findings of fact and two of his conclusions of law as being contrary to the Board’s policy of

regulating educator conduct in a manner that protects the safety and welfare of Texas schoolchildren

and contrary to the Board’s policy of disciplining educators who violate the Educators’ Code of

Ethics. The Board ultimately rejected the ALJ’s determination that Madden could not be sanctioned

because he professed a subjectively reasonable belief that his use of force was necessary, deciding

instead to issue a “non-inscribed reprimand,” a formal but unpublished censure that does not appear

on the educator’s certificate. See 19 Tex. Admin. Code § 249.3(45)(B) (State Bd. for Educator

Certification, Definitions). A non-inscribed reprimand is the least serious sanction the Board can

impose.6 It does not, according to the Board, affect the validity of the educator’s certificate, and it


       5
           We cite to the current version of the Texas Administrative Code because the sections
pertinent to this appeal were not changed substantively when they were amended and renumbered.
       6
           The Board may take any of the following disciplinary actions against an educator:

   (1) place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely
       or for a set term;

   (2) issue an inscribed or non-inscribed reprimand;


                                                  8
is accessible to others only by open records request or the educator’s own admission. The Board’s

final order issued the non-inscribed reprimand. Madden appealed the Board’s final order to the

district court, and the court affirmed the Board’s decision. This appeal followed.


                                          DISCUSSION

Madden’s challenges to the Board’s final order

               In his first issue, Madden contends that the Board’s final order failed to provide

an adequate explanation for the Board’s amendments to one finding of fact and two conclusions of

law in the ALJ’s proposal for decision. In Madden’s view, the Board had to explain how the same

evidence that the ALJ used to find Madden’s use of force was justified could be used by the Board

to determine that Madden’s use of force was not justified. Madden complains specifically about the

following changes made by the Board’s final order:


   (1)         amending the ALJ’s finding of fact that Madden “reasonably believed” the force
               he used in administering punishment to a student was necessary to maintain
               discipline, and finding instead that Madden’s belief that he used a necessary
               degree of force was not reasonable;




   (3) suspend a certificate for a set term or issue a probated suspension for a set term;

   (4) revoke or cancel, which includes accepting the surrender of, a certificate without
       opportunity for reapplication for a set term or permanently; or

   (5) impose any additional conditions or restrictions upon a certificate that the Board deems
       necessary to facilitate the rehabilitation and professional development of the educator or
       to protect students, parents of students, school personnel, or school officials.

19 Tex. Admin. Code § 249.15(a) (State Bd. for Educator Certification, Disciplinary Action by
State Bd. for Educator Certification).

                                                 9
   (2)         amending the ALJ’s conclusion of law that under section 22.0512 of the Texas
               Education Code, Madden may not be subject to disciplinary proceedings for his
               use of physical force against the student if his use of force was justified under
               section 9.62 of the Texas Penal Code, and concluding instead that Madden may
               be disciplined because he violated the Educators’ Code of Ethics and because his
               use of force exceeded the scope justified under the Penal Code; and

   (3)         amending the ALJ’s conclusion of law that under section 9.62 of the Penal Code,
               Madden’s use of force was justified by his reasonable belief that the force was
               necessary to maintain discipline, and concluding instead that Madden’s use of
               force was not justified under the Penal Code because the force used was not
               reasonable and of the degree necessary under the circumstances.


               The Board responds that its amendments to the ALJ’s proposal were proper and

necessary because the finding and the conclusions were improper applications or interpretations of

the Board’s policies, set forth in the Board’s rules, of regulating educator conduct in a manner that

protects the safety and welfare of Texas schoolchildren and of disciplining educators who violate the

Educators’ Code of Ethics. See Tex. Educ. Code § 21.031(a) (charging State Board for Educator

Certification with regulating and overseeing all aspects of standards of conduct for public school

educators); 19 Tex. Admin. Code § 249.5(a)(1), (5) (State Bd. for Educator Certification; Purpose,

Policy Governing Disciplinary Proceedings) (noting that among purposes of disciplinary proceedings

and sanctions is enforcement of Educators’ Code of Ethics and protection of safety and welfare of

Texas schoolchildren); see also Tex. Gov’t Code § 2001.003(6)(A)(i) (recognizing that rule may

implement, interpret, or describe state agency’s policy).

               The Texas Government Code authorizes an agency to change findings of fact and

conclusions of law in a proposal for decision if the agency determines that the ALJ did not properly

apply or interpret applicable law, agency rules, written policies, or prior administrative decisions.

See Tex. Gov’t Code § 2001.058(e)(1). When such changes are made, section 2001.058(e) of the

                                                 10
Government Code requires the agency to provide a written statement of the specific reason and legal

basis for such changes. See id. § 2001.058(e). Thus, resolution of Madden’s first issue requires us

to decide whether the amendments that the Board made to the proposal for decision were adequately

explained in its final order. We conclude that they were.


The Board’s final order adequately explains amendments to the ALJ’s proposal for decision

               Fairly summarized, the Board’s three amendments to the proposal for decision stated

that: (1) Madden’s belief that he used a necessary degree of force was not reasonable under the

circumstances; (2) Madden may be disciplined because he violated the Educators’ Code of Ethics

and because his use of force exceeded the scope justified under the Penal Code; and (3) Madden’s

use of force was not justified under the Penal Code because the force used was not reasonable and

of the degree necessary under the circumstances. Madden complains that the Board’s final order

did not provide an adequate explanation for these amendments. We disagree. All of the Board’s

amendments were adequately explained in the Board’s final order, which provided specific reasons

and legal bases for the changes, including that the ALJ’s decision was inconsistent with the Board’s

policies of regulating educator conduct in a manner that protects the safety and welfare of Texas

schoolchildren and of disciplining educators who violate the Educators’ Code of Ethics. See id.

               The Board’s final order provided specific reasons and a legal basis for the Board’s

amendment of the ALJ’s finding of fact. As noted above, the ALJ found that Madden “reasonably

believed the force he used” on J.S. “was necessary to maintain discipline.” The Board’s final order

stated that this finding is inconsistent with the Board’s “purpose and policy to safeguard the

safety and welfare of the child.” See 19 Tex. Admin. Code § 249.5(a)(1), (5); see also Tex. Gov’t


                                                11
Code § 2001.003(6)(A)(i). Thus, the Board amended the ALJ’s finding of fact to state that it was

“not reasonable under the circumstances” for Madden to believe that the degree of force used in

administering punishment to J.S. was necessary. In support of this amended finding, the Board’s

order relies on the evidence showing the severity of J.S.’s injuries (documented in the record with

photographs of his buttocks taken on the day of the paddling and approximately one week later), the

doctors’ opinions (concluding that J.S. sustained significant bruising, caused by excessive force,

which was “consistent with child physical abuse” based on the severity of the injuries that lasted for

several days afterwards), and the ALJ’s determination that Madden violated Standards 3.2 and 3.5

of the Educators’ Code of Ethics by “knowingly treating a student in a manner that adversely affected

the student’s learning, physical health, mental health, or safety” and by “physical[ly] mistreating

a student.”7 See 19 Tex. Admin. Code § 247.2(3)(B), (E) (emphasis added).

               The Board’s final order similarly provided specific reasons and a legal basis for the

amendment of two of the ALJ’s conclusions of law. Whereas the ALJ concluded that Madden was

exempt from disciplinary proceedings and that his use of force was justified, the Board’s final order

explained that such conclusions were inconsistent with the Board’s policy “to safeguard the safety

and welfare of the child,” the Board’s policy “to discipline educators who violate the Educators’

Code of Ethics,” and the ALJ’s other conclusions that Madden violated Standard 3.2 and 3.5 of

the Educators’ Code of Ethics. See id. § 247.2(3)(B), (E). In amending these legal conclusions, the

Board relied on the Educators’ Code of Ethics set forth in the Board’s rules and the ALJ’s



       7
          Madden did not challenge the ALJ’s legal conclusions that he violated the Educators’
Code of Ethics, and these conclusions were adopted in the Board’s final order. The absence of such
challenge waives any complaint about these conclusions on appeal. See Tex. R. App. P. 33.1(a).

                                                 12
unchallenged fact findings addressing the severity of J.S.’s injuries and the doctors’ opinions about

the degree of force that would cause those injuries. See id. § 247.2(3)(B), (E).

                Because the Board’s final order complied with section 2001.058(e) of the

Government Code by providing sufficient explanation of the specific reasons and legal bases for the

Board’s amendments to each finding and conclusion, the district court did not err in affirming the

Board’s final order. See Tex. Gov’t Code § 2001.058(e). We overrule Madden’s first issue.


The Board’s authority to sanction Madden

                Madden’s second issue asserts that the district court erred in sustaining the

Board’s sanction because he was entitled to a statutory exemption from professional sanctions that

applies to an educator’s justifiable use of corporal punishment. Specifically, Madden argues that the

exemption in section 22.0512 of the Education Code applies and, as a result, the Board lacked

authority to issue the non-inscribed reprimand against him.

                Our review of the Board’s order is governed by section 2001.174 of the

Government Code, which instructs us to reverse and remand this case if Madden’s substantial rights

have been violated because the Board’s findings, inferences, conclusions, or decisions are, among

other matters, in violation of a constitutional or statutory provision, in excess of the Board’s statutory

authority, or affected by other error of law. See id. § 2001.174(2). However, Madden’s argument

here—that he was entitled to the exemption from sanctions in section 22.0512(a) of the Education

Code because his use of corporal punishment was justified under the plain language of the

exemption—presents a pure question of statutory construction.




                                                   13
               We review questions of statutory construction de novo. See Railroad Comm’n

v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). In construing

a statute, our primary objective is to give effect to the legislature’s intent.      TGS–NOPEC

Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). We determine legislative intent

from the plain meaning of the words chosen when possible to do so, using any definitions provided.

See id.; see also Tex. Gov’t Code § 311.011. We consider the statutes as a whole rather than their

isolated provisions. TGS–NOPEC, 340 S.W.3d at 439. Further, we presume that the Legislature

chooses a statute’s language with care, purposefully choosing each word it includes and purposefully

omitting words not chosen. Id. When an agency is charged with enforcing a particular statute

and the statute is ambiguous, we will give serious consideration to the agency’s interpretation. See

Texas Citizens, 336 S.W.3d at 624-25. But when, as here, a statute is unambiguous, we adopt

the interpretation supported by its plain language unless such an interpretation would lead to

absurd results. See TGS–NOPEC, 340 S.W.3d at 439; see also Combs v. Health Care Servs. Corp.,

401 S.W.3d 623, 630 (Tex. 2013) (noting that agency’s reasonable interpretation of a statute is

granted deference, but a precondition to agency deference is ambiguity). Applying this standard, we

conclude the Board’s determinations that (1) Madden’s use of force against J.S. was not justified

under the Penal Code and (2) Madden was not exempt from discipline under the Education Code

are supported by the plain language of the governing statutes and do not lead to absurd results. See

TGS–NOPEC, 340 S.W.3d at 439; see also Tex. Educ. Code § 22.0512(a); Tex. Penal Code § 9.62.

               The Legislature has given the Board authority under section 21.041 of the Education

Code to enforce the Educators’ Code of Ethics and establish proceedings for educator discipline.

See Tex. Educ. Code § 21.041(b)(7), (8). The Education Code also provides an exemption from

                                                14
disciplinary proceedings for an educator’s justified use of corporal punishment. See id. § 22.0512(a).

Section 22.0512(a) of the Education Code states:


       A professional employee of a school district may not be subject to disciplinary
       proceedings for the employee’s use of physical force against a student to the extent
       justified under Section 9.62, Penal Code.


Id. This statute does not, however, prohibit a school district from enforcing a policy relating to

corporal punishment or bringing a disciplinary proceeding against a professional employee of

the district who violates the district policy relating to corporal punishment. Id. § 22.0512(c).

Section 22.0512 of the Education Code incorporates a Penal Code standard on the proper use of

force, which states:


       The use of force, but not deadly force, against a person is justified: (1) if the actor is
       entrusted with the care, supervision, or administration of the person for a special
       purpose; and (2) when and to the degree the actor reasonably believes the force is
       necessary to further the special purpose or to maintain discipline in a group.


Tex. Penal Code § 9.62.

               Madden contends that under section 9.62 of the Penal Code, concern about the effect

of the paddling on the student “ends . . . with a determination that the force used was not ‘deadly’”

and that the statute “does not concern itself with the effects [of the use of force] beyond simple

survival.” The Board responds that it properly exercised its authority to issue the non-inscribed

reprimand based on its determinations that (1) Madden’s belief that he used a necessary degree of

force was not reasonable under the circumstances and (2) such use of force was not justified. The

Board also points to its determination that the degree of force used by Madden was inconsistent with


                                                  15
the Board’s policy of enforcing the Educators’ Code of Ethics in a manner that protects the safety

and welfare of Texas schoolchildren. See 19 Tex. Admin. Code § 249.5(a)(1), (5). In the Board’s

view, because Madden’s use of force was not justified under the Penal Code, he was not exempt

from discipline under the Education Code.

               Texas law clearly allows educators to use reasonable force to discipline their

students. See Burton v. Kirby, 775 S.W.2d 834, 836 (Tex. App.—Austin 1989, no writ); Hogenson

v. Williams, 542 S.W.2d 456, 459 (Tex. Civ. App.—Texarkana 1976, no writ); see also Spacek

v. Charles, 928 S.W.2d 88, 93 (Tex. App.—Houston [14th Dist.] 1996, writ dism’d w.o.j.) (noting

that “[c]orporal punishment is but one form of discipline that the common law sanctions, provided

that teachers impose reasonable, but not excessive force in disciplining a child”). Use of such force

is consistent with the public policy of Texas to give educators the necessary support to enable them

to efficiently discharge their responsibilities. Hogenson, 542 S.W.2d at 460. However, we reject

Madden’s argument that an educator is wholly exempt from even the least serious Board sanctions

if he professes a subjectively reasonable belief that his use of force was necessary and the force

applied was not deadly.

               “Reasonable belief,” as used in section 9.62 of the Penal Code, involves an

objective—not subjective—standard defined as “a belief that would be held by an ordinary

and prudent man in the same circumstances as the actor.” Tex. Penal Code § 1.07(42); see also Dill

v. State, No. 04-10-00419-CR, 2011 Tex. App. LEXIS 6497, at *9 (Tex. App.—San Antonio

Aug. 17, 2011, pet. ref’d) (mem. op., not designated for publication) (noting, under similar

section of Penal Code addressing corporal punishment administered by parents, that “use of force

under section 9.61 is not justified simply because of a parent’s subjective belief that the force is

                                                 16
necessary; rather, the use of force is justified only if a reasonable person would have believed

the force was necessary to discipline the child or to safeguard or promote the child’s welfare”). This

objective standard supports the Board’s determination that Madden’s use of force was not justified

under section 9.62 because an ordinary and prudent person would not have believed that the

use of this amount of force, resulting in the bruising shown in this record, was “necessary . . . to

maintain discipline,” i.e., as punishment for J.S.’s conduct. See Tex. Penal Code § 9.62; Hogenson,

542 S.W.2d at 459-60 (construing section 9.62 of Penal Code to require that educator’s “use of force

or physical contact must be reasonable and not disproportionate to the activity or the offense”). The

plain language of the Education Code’s exemption from disciplinary proceedings for the use of

physical force against a student applies “only to the extent justified” under section 9.62 of the

Penal Code, which in turn incorporates an objective standard of reasonableness in assessing the

actor’s belief that the force used is necessary. See Tex. Educ. Code § 22.0512(a); Tex. Penal Code

§§ 1.07(42), 9.62. To the extent the ALJ relied on a subjective standard of reasonableness to

conclude that Madden’s use of force was justified, the conclusion was legally incorrect.

               Madden argues that the Board’s imposition of sanctions here does not account for

“unforeseen consequences” arising from the corporal punishment of a student. While the Court is

sympathetic to this uncertainty, state law charges the Board with overseeing public-school educators’

standards of conduct to protect Texas students, and we cannot say that the Board’s imposition of an

unpublished censure, the least serious sanction available, was an absurd result given the plain

language of section 22.0512(a) of the Education Code and its objective standard for determining

whether and to what degree the use of force is justified. See Tex. Educ. Code § 22.0512(a);

Tex. Penal Code §§ 1.07 (42), 9.62; 19 Tex. Admin. Code § 249.15(a) (range of sanctions). As this

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Court has stated, an educator must use professional judgment in determining the appropriate

force to be used in the administration of corporal punishment, and if the educator is unable to make

that determination, he may choose to administer another form of discipline. Burton, 775 S.W.2d

at 836 (rejecting argument that educators would be unable to determine whether they were using

unreasonable force in administering punishment); see also Tex. Att’y Gen. Op. No. GA-0202 (2004)

(defining corporal punishment generally as infliction of “bodily pain” as consequence for

inappropriate behavior but making no reference to physical injury).

               We conclude that the plain language of the disciplinary exemption in

section 22.0512(a) of the Education Code did not deprive the Board of authority to impose the non-

inscribed reprimand—its least serious sanction—against Madden. As such, the district court did not

err in affirming the Board’s sanction. We overrule Madden’s second issue.


                                         CONCLUSION

               Having overruled both of Madden’s issues, we affirm the district court’s judgment.




                                              Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: May 22, 2014




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