                                                                                 ACCEPTED
                                                                            03-14-00629-CV
                                                                                   3800795
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       1/16/2015 2:31:39 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
       ____________________________________________________

                         NO. 03-14-00629-CV         FILED IN
                                             3rd COURT OF APPEALS
                                                 AUSTIN, TEXAS
                   IN THE COURT OF APPEALS   1/16/2015 2:31:39 PM
               FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                           AT AUSTIN                 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 419 Judicial District Court, Travis County, Texas
                   Trial Court No. D-1-GN-13-003654
                Honorable Scott Jenkins, Judge Presiding
__________________________________________________________________
                       BRIEF OF APPELLANT
 LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

WALSH, ANDERSON, GALLEGOS, GREEN & TREVIÑO,P.C.
STACY T. CASTILLO
State Bar No. 00796322
scastillo@wabsa.com
D. CRAIG WOOD
State Bar No. 21888700                  APPELLANT LOS FRESNOS CISD
cwood@wabsa.com                           REQUESTS ORAL ARGUMENT
ELIZABETH G. NEALLY
State Bar No. 14840400
eneally@wabsa.com
100 N.E. Loop 410, #900
San Antonio, Texas 78216
Phone (210) 979-6633; Fax (210)979-7024
ATTORNEYS FOR LOS FRESNOS CISD
               IDENTITY OF THE PARTIES AND COUNSEL

       Appellant Los Fresnos Consolidated Independent School District certifies
that the following is a complete list of the parties to the trial court’s order from
which Appellant appeals, as well as the trial and appellate counsel.

   A.    Appellee (Plaintiff)

         Jorge Vazquez

         Counsel:        Mark W. Robinett
                         Brim, Arnett, Robinett & Conners, P.C.
                         2525 Wallingwood Drive, Building 14
                         Austin, TX 78746
                         (512) 328-0048
                         Fax: (512) 328-4814
                         mrobinett@brimarnett.com

   B.    Appellant (Defendant)

         Los Fresnos Consolidated Independent School District

         Counsel:        Stacy T. Castillo
                         D. Craig Wood
                         Elizabeth G. Neally
                         Walsh, Anderson, Gallegos, Green & Treviño, P.C.
                         100 N.E. Loop 410, # 900
                         San Antonio, Texas 78216
                         (210) 979-6633
                         Fax (210) 979-7024
                         scastillo@wabsa.com
                         cwood@wabsa.com
                         eneally@wabsa.com




                                         i
C.   Appellant (Defendant)

     Texas Commissioner of Education, Michael Williams

       Counsel:    Jennifer Hopgood
                   Nichole Bunker-Henderson
                   Assistant Attorneys General
                   Administrative Law Division
                   Office of the Attorney General of Texas
                   P.O. Box 12548, Capitol Station
                   Austin, Texas 78711-2548
                   (512) 475-4300
                   Fax (512) 320-0167
                   Jennifer.Hopgood@texasattorneygeneral.gov
                   Nichole.Bunker-Henderson@texasattorneygeneral.gov




                                ii
                                         TABLE OF CONTENTS


IDENTITY OF THE PARTIES AND COUNSEL ....................................................i

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES.....................................................................................vi

STATEMENT OF THE CASE .................................................................................xi

STATEMENT ON ORAL ARGUMENT .............................................................. xii

ISSUES PRESENTED ON APPEAL.................................................................... xiii

STATEMENT OF FACTS ........................................................................................ 2

    A. Background ...................................................................................................... 2
    B. Proposed Nonrenewal ...................................................................................... 2
    C. The Nonrenewal Hearing................................................................................. 3
       1. Live Witness Testimony ............................................................................. 3
          a. Testimony of Principal Villarreal .......................................................... 3
             1. Inappropriate movie incident ........................................................... 4
             2. Inappropriate discipline/video tape incident .................................... 5
             3. Inappropriate comments ................................................................... 6
          b. Testimony of Ada Amaro-Sibaja ........................................................ 11
          c. Testimony of Superintendent Salazar ................................................. 12
          d. Testimony of Appellee Vazquez ......................................................... 16
             1. Inappropriate movie incident ......................................................... 16
             2. Inappropriate discipline/video tape incident .................................. 17
             3. Inappropriate comments ................................................................. 17
       2. Pertinent Documentary Evidence ............................................................. 19
          a. Written student statements regarding video tape incident
             (Exhibit 17).......................................................................................... 19
          b. Written student statements regarding inappropriate comments (Exhibit
             11) ........................................................................................................ 21
          c. Notice of Warning, March 5, 2013 (Exhibit 8) ................................... 26
          d. Notice of Warning, April 30, 2012 (Exhibit 9) ................................... 27
                                                            iii
         e. Notice of Warning, April 13, 2012 (Exhibit 12) ................................. 27
         f. Appraisal ............................................................................................. 28
    D. Board Voted to Nonrenew ............................................................................. 29
    E. Appeal to the Commissioner ......................................................................... 29
    F. Appeal to Trial Court ..................................................................................... 29

SUMMARY OF THE ARGUMENT ...................................................................... 31

ARGUMENT ........................................................................................................... 33

    A. Standard Of Review....................................................................................... 33
    B. The Rules of Evidence do not apply ............................................................. 35
           1. Differences between a nonrenewal and termination hearing .............. 35
           2. Statutory construction of nonrenewal procedures ............................... 37
              a. Legislative intent ............................................................................ 37
              b. Commissioner’s interpretation ....................................................... 39
    C. Hearsay evidence can support substantial evidence ...................................... 40
           1. Texas school cases............................................................................... 41
           2. Other Texas cases not applicable ........................................................ 44
           3. Fifth Circuit cases ................................................................................ 46
           4. Sister state courts ................................................................................. 47
    D. Even if the Rules of Evidence apply, liberal exceptions apply to hearsay
           evidence .................................................................................................... 51
    E. The right to cross-examine adverse witnesses under Texas Education Code
           §21.207(c) does not prohibit the use of hearsay statements in a
           nonrenewal hearing before a school board ............................................... 54
    F. Even if hearsay statements are not permissible, the non-hearsay evidence
           presented constituted substantial evidence supporting the Board’s
           decision ..................................................................................................... 57
    G. In the alternative, if the Court finds that hearsay evidence should have been
           excluded, the case should be remanded to the Commissioner for further
           findings based on the admissible evidence .............................................. 60

CONCLUSION AND PRAYER ............................................................................ 61

CERTIFICATE OF SERVICE ................................................................................ 63

CERTIFICATE OF COMPLIANCE ....................................................................... 64
                                                            iv
APPENDIX

Commissioner’s Decision ......................................................................................... A

Trial Court’s Final Judgment .................................................................................... B

Texas Education Code §21.207 ................................................................................ C




                                                        v
                                    INDEX OF AUTHORITIES

Cases

Accord Bradley v. Colonial Mental Health and Retardation Services Board,
 856 F.2d 703 (4th Cir.1988) .................................................................................55

Amarillo Indep. Sch. Dist. v. Meno,
 854 S.W.2d 950, (Tex. App. – Austin 1993, writ denied)....................................60

Benson v. San Antonio Savings Ass’n,
 374 S.W.2d 423 (Tex. 1963) ................................................................................44

Board of Directors of Ames Community Sch. Dist. v. Cullinan,
 745 N.W.2d 487 (S. Ct. Iowa 2008) ............................................ 47, 48, 49, 52, 54

Board of Trustees of Employees Ret. Sys. v. Benge,
 942 S.W.2d 742 (Tex. App.—Austin 1997, writ denied).....................................35

Boykins v. Fairfield Board of Educ.,
 492 F.2d 697 (5th Cir. 1974), cert. denied 420 U.S. 962 (1975) .................. 39, 40

Broughton v. Livingston Indep. Sch. Dist., No. 9:08-CV-175,
 2010 WL 4453763 (E.D. Tex. Nov. 3, 2010) ................................................ 53, 58

Bruington Engineering, Ltd v. Pedernal Energy, L.L.C.,
  - S.W.3d - , No. 04-13-558-CV, 2014 WL 4211024 (Tex. App. – San Antonio
 Aug. 27, 2014, no pet.) .........................................................................................38

Brauninger v. Motes,
 260 Fed. Appx. 634 (5th Cir. 2007) ................................................................ 53, 58

City of El Paso v. Public Util. Com’n,
 883 S.W.2d 179 (Tex. 1994) ................................................................................35

Doty v. Tupelo Pub. Sch. Dist.,
 751 So.2d 1212, (Miss. Ct. App. 1999) ................................................................48

                                                         vi
Farris v. Fort Bend Indep. Sch. Dist.,
 27 S.W.3d 307 (Tex. App.—Houston [1st Dist.] 2000, no pet.) ...........................34

Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer,
  662 S.W.2d 953 (Tex. 1984) ......................................................................... 33, 34

Galbraith Engineering Consultants, Inc. v. Pochuca,
 290 S.W.3d 863 (Tex. 2009) ................................................................................38

Gerst v. Gibraltar Savings Ass’n,
 413 S.W.2d 718, 723 (Tex. Civ. App. – Austin 1967), writ ref’d n.r.e., 417
 S.W.2d 584 (Tex. 1967)........................................................................................45

Hardy v. Matter,
 350 S.W.3d 329, 332 (Tex. App. – San Antonio 2011, pet. dism’d) ...................38

Hierlmeier v. North Judson-San Pierre Bd. of Sch. Trustees,
 730 N.E.2d 821 (Ind. Ct. App. 2000) ............................................................ 47, 48

Hinkle v. Garrett-Keyser-Butler Sch. Dist.,
 567 N.E.2d 1173, 1178 (Ind. Ct. App. 1991) ................................................ 48, 50

In re General Elec. Co.,
  271 S.W.3d 681, 687 (Tex. 2008) ........................................................................38

In re Hall,
  286 S.W.3d 925, (Tex. 2009) ...............................................................................37

In Re M.N.,
  262 S.W.3d 799, (Tex. 2008) ...............................................................................38

Laidlaw Waster Sys. (Dallas) Inc. v. City of Wilmer,
 904 S.W.2d 656 (Tex. 1995) ................................................................................38

Lewis v. Southmore Savings Ass’n,
  480 S.W.2d 180 (Tex. 1972) ......................................................................... 44, 51


                                                       vii
Mary Lee Foundation v. Texas Employment Comm’n,
 817 S.W.2d 725 (Tex. App. – Texarkana 1991, writ denied) ..............................60

Matthews v. Scott,
 268 S.W.3d 162 (Tex. App. – Corpus Christi-Edinburg 2008, no pet.) ...............33

McConnell v. Alamo Heights Indep. Sch. Dist.,
 576 S.W.2d 470 (Tex. Civ. App. – San Antonio 1978, writ ref’s n.r.e.) .............33

Miller v. Houston Indep. Sch. Dist.,
 51 S.W.3d 676 (Tex. App. – Houston [1st Dist.] 2001, pet. denied) ....................33

Mireles v. Tex. Dep’t of Pub. Safety,
 9 S.W.3d 128 (Tex. 1991).............................................................................. 33, 34

Montgomery Indep. Sch. Dist. v. Davis,
34 S.W.3d 559 (Tex. 2000) ............................................................................... 33, 34

Nelson v. Weatherwax,
 59 S.W.3d 340 (Tex. App.—Fort Worth 2001, pet. denied) ......................... 33, 34

Peaster Indep. Sch. Dist. v. Glodfelty,
 63 S.W.3d 1 (Tex. App. – Texarkana 2001, no pet.)............................... 42, 43, 44

Railroad Comm’n v. Southern Pacific Co.,
 468 S.W.2d 125 (Tex. App. – Austin 1971), writ ref’d n.r.e., 471 S.W.2d 39
 (Tex. 1971)..................................................................................................... 44, 45

Richardson v. Perales,
  402 U.S. 389 (1970) ..............................................................................................47


School Bd. of Broward Co., Fla. v. Department of Health, Education, and Welfare,
  525 F.2d 900 (5th Cir. 1976) .................................................................... 46, 47, 52
State v. Pub. Util. Comm’n,
883 S.W.2d 190 (Tex. 1994) ....................................................................................34


                                                          viii
Stratton v. Austin Indep. Sch. Dist.,
  8 S.W.3d 26 (Tex. App. – Austin 1999, no writ) .................................................41

Texas Dep’t of Transp. v. Needham,
  82 S.W.3d 314 (Tex. 2002)...................................................................................37

Texas Educ. Agency v. Goodrich Indep. Sch. Dist.,
  898 S.W.2d 954 (Tex. App. – Austin 1995, writ denied).....................................34

Texas Employment Comm’n v. Hays,
  360 S.W.2d 525 (Tex. 1962) ................................................................................34

Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc.,
  665 S.W.2d 446 (Tex. 1984) ................................................................................35

Texas State Bd. of Dental Exam’rs v. Sizemore,
  759 S.W.2d 114 (Tex. 1988), cert. denied, 490 U.S. 1080 (1989).......................33

TGS-NOPEC Geophysical Co. v. Combs,
 340 S.W.3d 432 (Tex. 2011) ....................................................... 37, 38, 39, 40, 52

W. v. Grand Cnty.,
 967 F.2d 362 (10th Cir. 1992) ..............................................................................55

Whitaker v. Moses,
 40 S.W.3d 176 (Tex. App. – Texarkana 2001, no pet.)........................................40

Wilson v. Board of Education,
 511 S.W.2d 551 (Tex. App. – Fort Worth 1974, writ ref’d n.r.e) ........... 40, 41, 42

Wright v. Marsh,
 378 So. 2d 739 (Ala. Civ. App.) writ denied sub nom. Ex parte Marsh, 378 So.
 2d 742 (Ala. 1979) ................................................................................................56

Young v. U.S. Dep’t of Agriculture,
 53 F.3d 728 (5th Cir. 1995) ...................................................................................47


                                                          ix
Yselta Indep. Sch. Dist. v. Meno,
  933 S.W.2d 748 (Tex. App. – Austin 1996, writ denied).....................................60


Statutes

7 TEX. ADMIN. CODE §9.18 ......................................................................................45

7 TEX. ADMIN. CODE §9.26 ......................................................................................45

16 TEX. ADMIN. CODE §1.101 ..................................................................................45

16 TEX. ADMIN. CODE §1.85 ....................................................................................45

TEX. EDUC. CODE §21.204 (e) ..................................................................................41

TEX. EDUC. CODE §21.207 ................................................................................ 35, 36

TEX. EDUC. CODE §21.251-21.260 ...........................................................................36

TEX. EDUC. CODE §21.255 ....................................................................................... 36

TEX. EDUC. CODE §21.256 .................................................................................36, 37

TEX. EDUC. CODE §21.307 .......................................................................................33

TEX. FINANCE CODE §11.202 ...................................................................................45

TEX. GOV’T CODE §2001.081...................................................................................52

TEX. GOV’T CODE §312.002.....................................................................................37

TEX. GOV’T CODE §312.005.....................................................................................37

Commissioner's Decisions

Dews v. Tyler Indep. Sch. Dist.,
 Dkt. No. 053-R1-0508 (Comm’r Educ. 2008)......................................................40

Green v. Brazosport Indep. Sch. Dist.,
 Dkt. No. 083-R1-0512 (Comm’r Educ. 2012)......................................................40

                                                        x
                             STATEMENT OF THE CASE

       Nature of the case: This is an administrative appeal from the nonrenewal of

a teacher’s term contract.

      Course of Proceedings and Disposition:

       Vazquez filed a Petition for Review with the Commissioner of Education on

July 2, 2013, appealing the Board’s nonrenewal decision. See A.R. 1 Vol. I at 66-

69. On August 21, 2013, the Commissioner affirmed the Board’s nonrenewal

decision. See A.R. Vol. I at 5-24. Vazquez then filed a Motion for Rehearing on

September 9, 2013, which was denied by operation of law. Id. at Vol. I at 28-38.

       Vazquez filed his Original Petition in Travis County district court on

October 13, 2013, appealing the Commissioner’s decision. See C.R. at 3-6. After

briefing by the parties and hearing oral argument, the trial court reversed the

Commissioner’s decision. See C.R. at 152-154.

       The District and the Commissioner timely filed their respective Notices of

appeal on October 3, 2013. Id. at 155-163. After receiving an extension of time to

file its Brief, the District now timely files this its Brief of Appellant.

1
  A.R. denotes the Administrative Record from the proceeding before the Commissioner of
Education, which was filed in this Court with the Reporter’s Record. The page references to the
Administrative Record are to the pages bates-numbered by TEA and marked as “TEA#.” C.R.
denotes Clerk’s Record, and R.R. refers to the Reporter’s Record.

                                              xi
                  STATEMENT ON ORAL ARGUMENT

      Appellant Los Fresnos Consolidated Independent School District requests

oral argument.




                                     xii
                    ISSUES PRESENTED ON APPEAL

1.   Whether the Texas Rules of Evidence apply in a teacher term contract

     nonrenewal hearing before a school board.

2.   Whether hearsay evidence can support substantial evidence in a teacher term

     contract nonrenewal hearing.

3.   If the Rules of Evidence apply, whether liberal exceptions apply to hearsay

     evidence in a teacher term contract nonrenewal hearing.

4.   Whether the right to cross-examine adverse witnesses permitted under Texas

     Education Code §21.207(c) prohibits the use of hearsay statements in a

     teacher term contract nonrenewal hearing.

5.   If hearsay statements are not permitted in a nonrenewal hearing before a

     school board, whether the non-hearsay evidence presented at Vazquez’

     nonrenewal hearing constituted substantial evidence supporting the Board’s

     decision to nonrenew Vazquez’ teaching contract.

6.   In the alternative, if hearsay statements are not permitted in a nonrenewal

     hearing, whether the trial court erred by not remanding the case to

     Commissioner to make findings based on the non-hearsay evidence.




                                      xiii
         ____________________________________________________

                             NO. 03-14-00629-CV

                      IN THE COURT OF APPEALS
                  FOR THE THIRD DISTRICT OF TEXAS
                              AT AUSTIN

  _____________________________________________________________
 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 419 Judicial District Court, Travis County, Texas
                   Trial Court No. D-1-GN-13-003654
                Honorable Scott Jenkins, Judge Presiding
  _____________________________________________________________
                       BRIEF OF APPELLANT
 LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

To the Honorable Justices of the Third Court of Appeals:

      Appellant Los Fresnos Consolidated Independent School District (“Los

Fresnos CISD,” “LFCISD” or “the District”) files its Brief in this appeal. As set

out below, this Court should reverse the trial court’s order and affirm the

Commissioner’s decision, upholding Vazquez’ nonrenewal.




                                     Page 1
                           STATEMENT OF FACTS

A.    Background

      For the 2012-2013 school year, Appellee Vazquez was employed as a

certified teacher for the District under a term contract. See A.R. Vol. II at 349-50.

He taught at Los Fresnos for approximately nine years, teaching computer

programming, banking and financing, and keyboarding.           See A.R. Vol. II at

230:10-17).

B.    Proposed non-renewal

      On April 4, 2013, the Principal of Los Fresnos United 9 th grade campus,

where Vazquez taught, recommended to the Superintendent that Vazquez be

considered for nonrenewal. See A.R. Vol. II at 347. On May 13, 2013, the Board

of Trustees of Los Fresnos CISD accepted the recommendation of its

Superintendent, Gonzalo Salazar, to propose the nonrenewal of Vazquez’ term

contract. See A.R. at 286-288. Superintendent Salazar sent Vazquez a letter

advising him that his contract had been proposed for nonrenewal and setting out

the following reasons for the proposed nonrenewal:

         1. Students and parents had complained of his inappropriate
            comments and that he made them feel uncomfortable;

         2. A parent had complained of his showing an inappropriate
            movie;

                                       Page 2
           3. Parents requested their children be removed from his class;

           4. Other students corroborated others’ complaints;

           5. Despite prior directives concerning his prior inappropriate and
              unprofessional behavior, Vazquez failed to follow those
              directives;

           6. His appraisal reflected performance issues, including issues
              involving student discipline, communications with students,
              and compliance with District policies.

See A.R. Vol. II at 286-288. In that letter, Superintendent Salazar also set out the

Board policies that Vazquez had violated, including, but not limited to, his failure

to maintain discipline, failure to adhere to professional standards of conduct, and

misrepresenting facts to his supervisor. Id.

C.    The Nonrenewal Hearing

      Vazquez timely requested and received a hearing on his proposed non-

renewal; the Board heard the proposed non-renewal on June 13, 2013.             See

generally A.R. Vol. II at 117-441. At the hearing, both the administration and

Vazquez presented evidence and questioned witnesses. Id.

      The following is a summary of the evidence presented at the non-renewal

hearing:

      1. Live Witness Testimony

           a.    Testimony of Principal Villarreal

                                       Page 3
      Mr. Joseph Villarreal, principal of Los Fresnos United 9th grade campus

since July 2012, met with his predecessor, Jimmy McDonough, about school

employees who were having issues at the campus prior to taking over as principal.

See A.R. Vol. II at 134:11-23, 135:1-15. Mr. Villarreal was told that Vazquez had

received two Notices of Warning just prior to the 2012-13 school year. Id. at 135-

136; 143; 410, 440. Mr. Villarreal testified that a Notice of Warning is rarely

given to a teacher, but it is issued when a teacher has issues regarding student

safety or issues detrimental to student learning. Id. at 135:16-25, 136:1-5.

             1. Inappropriate movie incident

      On or about April 10, 2012, Principal McDonough investigated a complaint

of Vazquez’ showing the movie Burlesque to his class. Id. at 136-137. As a result

of the investigation, Principal McDonough issued a Notice of Warning dated April

13, 2012 for showing an inappropriate movie, delineating the procedures to be

followed by Vazquez in the future for showing movies in his classroom. Id. at

136-138, 440, 442.

      In the Notice of Warning, Principal McDonough found that Vazquez

admitted he showed Burlesque to the class during class time, the movie was not

detailed in his lesson plans, and he had not received prior approval to show the

film. Id. at 440. Additionally, Vazquez had not previewed the film himself before

                                       Page 4
showing it. Id. Principal McDonough directed Vazquez to seek pre-approval

before showing any movies or videos in his classroom and detail the movie or

video in his lesson plans. Id. He was further warned that failure to preview the

contents of videos before showing them to the class is never acceptable. Id.

               2. Inappropriate discipline/video tape incident

      On or about April 24, 2012, Principal McDonough received a complaint

from a parent concerning Vazquez’ alleged videotaping her daughter during class.

Id. at 410. Principal McDonough investigated the incident. Id. The parent had

complained that Vazquez had set up a camera to videotape a student because she

had been tossing her hair and in his opinion, causing a distraction. Id. at 139:5-21;

140:2-8; 410. Vazquez was supposedly recording her to show how many times she

was tossing her hair in the class period because he deemed it disruptive. Id. at

140:2-8.

      During Principal McDonough’s investigation, he took written statements

from students about the incident.      Id. at 141:11-14; 142:8-20; 449-457.      The

student statements corroborated the complaint that Vazquez was recording the

student. Id.

      On April 30, Principal McDonough issued a second Notice of Warning to

Vazquez based on the video tape incident. Id. at 138:25; 139:1-4; 410. Principal

                                        Page 5
McDonough had met with Vazquez about the incident, and Vazquez acknowledged

that he had moved the student to the front of the room and set the camera up, but

that he was only pretending to record the student to help get her on task instead of

playing with her hair. Id. at 410. He used the tactic as a form of corrective

discipline. Id. In the Notice of Warning, Principal McDonough warned Vazquez

to never lead a student to believe they are being videotaped as a means of

discipline. Id. He was instructed that his behavior was not acceptable. Id.

      Principal Villarreal testified that the actions taken by former Principal

McDonough in issuing the two Notices of Warning were warranted based on the

complaints received and corroborated. Id. at 137:10-24; 140:9-12; 142:21-25.

According to Principal Villarreal, it is absolutely inappropriate to pretend to tape a

student as a means of corrective discipline. Id. at 140:9-12, 22-25, 141:1-6.

             3. Inappropriate comments

      In or around January 2013, a student complained to another teacher that

Vazquez had singled out and humiliated fellow student N.N. in front of the class

for his clothing. Id. at 143:25; 144:12. The teacher brought this complaint to

Principal Villarreal’s attention. Id. at 144:10-12. As a result, Principal Villarreal

conducted an investigation, personally questioning the students from the classroom

regarding this incident. Id. at 145:1-10. He selected the students at random from

                                       Page 6
the class roster. Id. at 188:6-13.

      Principal Villarreal spoke with student N.N. on the day of the incident. Id.

at 145:4-10, 17-19; 173:16-21. N.N.’s statement of what had happened in class

was corroborated by two other students, K.S. and C.M. Id. at 148-151, 414-418.

The students told Principal Villarreal that Vazquez asked N.N. if he was wearing

suspenders and a belt at the same time and if he had worn that on purpose. Id. 149,

151. When Vazquez was questioning him, N.N. tried to change the topic, but then

Vazquez tried to make an example of how to answer a question by having another

student turn on and off the light. Id.at 149:7-23. Student N.N. gave a written

statement to Mr. Villarreal detailing this incident.    Id. at 147:1-17; 414-417.

Students C.M. and K.S. also gave written statements to Principal Villarreal about

the incident. Id. at 148-151, 418, 419. The written statements were consistent with

what the students had told Principal Villarreal. Id. at 148-151. The students’

statements corroborated what N.N. had reported. Id. at 188:14-18.

      Principal Villarreal testified that the incident caused him concern because

Vazquez had singled out N.N. for issues that were not dress code violations,

Vazquez had ridiculed the student by questioning him about his choice of clothing,

and had intimidated N.N. Id. at 149-151.

      Principal Villarreal met with Vazquez to discuss the suspenders incident. Id.

                                      Page 7
at 165:1-8.     According to Principal Villarreal, Vazquez admitted making the

comment about the suspenders and belt, but denied doing so in front of other

students.     Id.   Vazquez claimed he was trying to save the student from

embarrassment. Id. at 174:19-22.

      During the course of the investigation of the incident involving N.N.,

additional information came to light regarding Vazquez’ inappropriate conduct in

class. Id. at 148:1-23, 152. During the investigation, Principal Villarreal asked if

the students felt uncomfortable in Vazquez’ class, and if they said yes, he asked

why. Id. at 148. He did not suggest any particular conduct for them to report. Id.

In addition to speaking with the principal, the students also provided him with their

written statements on the day of or shortly after the suspenders comment, although

the statements themselves are not dated. Id. at 173-174, 414, 418-420, 428-434.

      Principal Villarreal obtained a statement from student G.V., who reported

that Vazquez had made a comment that implied she was fat. Id. at 152. When the

class was talking about popcorn, G.V. had commented that she could eat a bag by

herself, and Vazquez commented “it shows”.          Id.   at 152, 420.   During his

interviews with students, other students corroborated what G.V. had reported. Id.

at 152:19-22, 190:5-13.

      Student N.D.L. reported to him that Vazquez had shown a strong affection

                                       Page 8
towards her and her family, making her uncomfortable; no other student statements

corroborated this. Id. at 153-154.

      Principal Villarreal also met with student E.F., who provided a written

statement to Mr. Villarreal during his investigation. Id. at 155-162, 429-434. In

addition to reporting several different incidents (detailed infra), E.F. reported to the

principal that Vazquez commented to her about her wearing a skirt, asking if she

was a cheerleader and telling her she looked nice when she wore dresses. Id. at

155, 429-434.       Principal Villarreal testified that Vazquez had behaved

inappropriately based on E.F.’s written statement of incidents that had occurred in

the classroom. Id. at 155-162, 429-434. Specifically, he found that Vazquez had

behaved unprofessionally by commenting on E.F.’s clothing and winking at her.

Id. He further stated that Vazquez did not handle the class appropriately when

Vazquez asked students to vote on whether another student had called him an

“asshole.” Id. Several other students corroborated this indeed had occurred. Id. at

189:17-25.

      Additionally, E.F. reported to Principal Villarreal that Vazquez told another

female student she needed to wear a “tight little outfit” if she were going for a job

interview. Id. at 159. Principal Villarreal testified that other students corroborated

this incident. Id. Based on what E.F. had reported to him, Principal Villarreal

                                        Page 9
found Vazquez had ridiculed students, made them feel uncomfortable, and behaved

inappropriately. Id. at 157-158. Principal Villarreal testified that he believed

student E.F. and found her credible; she was a “top-notch student academically”

with no discipline issues. Id. at 157-158, 192:5-8.

      Principal Villarreal testified that based on his investigation, the

corroborating information provided by students, the information contained in

Vazquez’ personnel file concerning prior Notices of Warning, and the information

through his discussions with Mr. McDonough regarding Vazquez, he believed that

Vazquez exhibited a pattern of behavior that required action be taken. Id. at 163:3-

17. Consequently, Mr. Villarreal issued a Notice of Warning dated March 5, 2013,

which contained the information he found as a result of his investigation. Id. at

163:18-25, 164:1, 407-408.     He also recommended to the superintendent that

Vazquez’ contract be nonrenewed. Id. at 166:4-12, 346-47.

      Mr. Villarreal testified Vazquez had previously been informed of his

obligations and requirements of his duties, and signed the Employee Handbook

Acknowledgment Form acknowledging receipt of the Employee Handbook for the

2011-2012 and 2012-2013 school years. Id. at 168:16-25; 404, 444.

      Mr. Villarreal testified that in his opinion, Vazquez failed to be a positive

role model for students and failed to support the mission of the school district as

                                      Page 10
required by item 13 on his job description. Id. at 168:2-7, 352-354. He further

testified that Vazquez failed to maintain a professional relationship with

colleagues, students, parents, and community members, in violation of item 19 on

his job description. Id. at 168:8-15, 352-354.

         b.     Testimony of Ada Amaro-Sibaja

      The Board also heard testimony from Ms. Ada Amaro-Sibaja, Executive

Director for Support Services. Id. at 198-207. Ms. Amaro-Sibaja became involved

in the current matter as a result of a Level Two Grievance filed by Vazquez in

connection with his March 5, 2013 Notice of Warning. Id. at 199:10-15. Ms.

Amaro-Sibaja testified that she conducted an investigation into Vazquez’ grievance

concerning the Notice of Warning, looking into the basis for the Warning. Id. at

199:14-22.    In her investigation, she interviewed students and took student

statements, selecting many students at random from the class roster and based on

names that came up during her investigation. Id. at 199-201. She testified that she

wanted to conduct her own investigation and “just have a more thorough

investigation on [her] own.” Id. at 202:17-22.

      Ms. Amaro-Sibaja took several witness statements and those statements

were consistent with statements obtained by Principal Villarreal in his earlier

investigation. Id. at 200-201, 206:14-18, 415-417, 421-427, 435-438. She testified

                                      Page 11
that the students’ written statements were not far removed from the incidents

reported. Id. at 206:6-10. The statements she received from the students were

dated April and May 2013. Id. at 206, 415-417, 421-427, 435-438. Based on her

investigation, she concluded that the Notice of Warning had been justified and

warranted. Id. at 203:3-15. She also testified that she would have recommended

Vazquez for nonrenewal if she were his supervisor.       Id. She found that the

students had been humiliated, embarrassed, and made to feel awkward by

Vazquez. Id.

         c.    Testimony of Superintendent Salazar

      Superintendent Gonzalo Salazar also testified at the nonrenewal hearing. Id.

at 207-225. Superintendent Salazar testified that based on his review of Vazquez’

conduct, Vazquez had not been a positive role model for students and had not

supported the mission of the school district as required by item 13 on his job

description.   Id. at 208:4-14.     Vazquez failed to maintain a professional

relationship with colleagues, students, parents and community members as

required by item 19 of his written job description. Id. at 208:15-19; 352-354. In

Superintendent Salazar’s professional opinion, Vazquez failed to comply with the

standard practices and ethical conduct toward students in violation of Board Policy

DH (Legal).    Id. at 209:1-6; 459-461. Additionally, Vazquez violated Board

                                     Page 12
Policy DH (Local) and DH (Exhibit), which required employees to recognize and

respect the rights of students, parents and serve the best interests of the District.

Id. at 209:7-25, 210:1-5; 463-470.

      According to Superintendent Salazar, Vazquez failed to protect the rights of

students and failed to meet the provisions of DH (Exhibit) of safeguarding

academic freedom, maintaining the dignity of the profession, respecting and

obeying the law, demonstrating personal integrity, and exemplifying honesty. Id.

210: 8-18. Based on his review of Vazquez’ conduct, Superintendent Salazar

testified that Vazquez had violated the following provisions of Board Policy DH

(Exhibit):

      •      Standard 1.7
             The educator shall comply with state regulations, written local Board
             policies, and other state and federal laws.

      •      Standard 1.10
             The educator shall be of good moral character and be worthy to
             instruct or supervise the youth of this state.

      •      Standard 3.2
             The educator shall not intentionally, knowingly, or recklessly treat a
             student or minor in a manner that adversely affects or endangers the
             learning, physical health, mental health, or safety of the student or
             minor.

      •      Standard 3.4
             The educator shall not exclude a student from participation in a
             program, deny benefits to a student, or grant an advantage to a student
             on the basis of race, color, gender, disability, national origin, religion,
                                       Page 13
             family status, or sexual orientation.

      •      Standard 3.8
             The educator shall maintain appropriate professional educator-student
             relationships and boundaries based on a reasonably prudent educator
             standard.

      •      Standard 3.9 (b)
             The educator shall refrain from inappropriate communications with a
             student or minor, including, as it relates to the subject matter of the
             communication.

Id. at 210-212, 467-470.

      According to Superintendent Salazar, Vazquez had also violated Board

Policy FFH (Legal and Local), which prohibited discrimination, retaliation and

harassment of students. Id. at 212, 474. Superintendent Salazar testified that what

Vazquez termed redirecting a student was actually harassment of students. Id. He

testified further that the behavior exhibited by Vazquez did not support the

school’s mission in developing successful, responsible, life-long learners through a

quality educational experience. Id. at 213. “[S]chools should be a safe haven. It

should be a place where [students] feel they can come and be protected. The last

thing that should happen is for a teacher to ridicule a student….” Id. at 213:14-19.

      Vazquez received a Notice of Proposed Nonrenewal dated May 17, 2013,

which detailed the reasons for the proposed nonrenewal as permitted in District

Policy DFBB (Local) and which Superintendent Salazar felt Vazquez had violated.

                                       Page 14
Id. at 268-273, 286-288. These reasons included:

          Deficiencies pointed out in observation reports, appraisals, or
           evaluations, supplemental memoranda or other communication;

          Failure to fulfill duties or responsibilities;

          Inability to maintain discipline in any situation in which the employee
           is responsible for the oversight and supervision of students;

          Insubordination or failure to comply with Board policies or
           administrative regulations;

          Failure to meet the District’s standards of professional conduct;

          Failure to maintain an effective working relationship, or maintain
           good rapport with parents, the community or colleagues;

          Misrepresentation of facts to a supervisor or other District official in
           the conduct of District business;

          Any attempt to encourage or coerce a child to withhold information
           from the child’s parent or from other District personnel;

          Any reason constituting good cause for terminating the contract
           during its term;

                Violation of the Preamble to the Code of Ethics and Standard
                 Practices for the Texas Educators (Code), District Policy DH
                 (Exhibit)

                       Failing to maintain the dignity of the profession, respect
                        and obey the law and demonstrate personal integrity and
                        exemplify honesty;

                Violation of Standard 1.7 of the Code….comply with the state
                 regulations, written local school board policies, and other
                                       Page 15
                  applicable state and federal laws;

                Violation of Standard 1.10 of the Code…to be of good moral
                 character and be worthy to instruct or supervise the youth of
                 this state;

                Violation of Standard 2.2 of the Code…the educator shall not
                 intentionally, knowingly, or recklessly treat a student or minor
                 in a manner that adversely affects or endangers the learning,
                 physical health, mental health, or safety of the student or minor;

                Violation of District Policy DH (Local)…to perform …duties
                 in accordance with state and federal law, District policy and
                 ethical standards.
Id.

      Superintendent Salazar testified that based on his review of Vazquez’

conduct, Vazquez had violated or failed to adhere to each of the enumerated items

in the May 17, 2013 Notice of Nonrenewal.          Id.   As a result, Mr. Salazar

recommended that the Board nonrenew Vazquez’ contract. Id.

         d.    Testimony of Appellee Vazquez

               1. Inappropriate movie incident

      Regarding the inappropriate movie, Vazquez admitted that he showed the

movie Burlesque to his class. Id. at 242-243. He testified that he obtained the

movie from a student and assumed that the content was appropriate based on the

movie rating of PG-13. Id. He allowed the students to watch the movie, but

claimed that they only had time to watch a portion of it. Id. at 244. He admitted

                                     Page 16
that he personally watched the remainder of the movie later and then realized the

movie was not appropriate to be shown in class despite its PG-13 rating. Id. at

245: 6-10; 264:12-23. He further acknowledged that he had not previewed the

movie before showing it to the class and the movie was not in his lesson plans. Id.

at 243. After receiving the Notice of Warning about showing the movie, he did not

show another movie to his class. Id. at 245:11-15.

                2. Inappropriate discipline/video tape incident

      In his testimony, Vazquez admitted that he pretended to videotape student

S.G. in an attempt to prevent off-task behavior. Id. at 234. Vazquez denied he

intended to bully, humiliate or intimidate her. Id. at 233, 239. He denied that his

pretend video taping was due to the twirling of her hair, but claimed it was because

she was off-task. Id. at 234:2-16. Vazquez stated that he did not have to take time

to set up a camera to record S.G., because the camera was already set up for

recording presentations that the class was doing; he merely pretended to record

S.G. being off-task. Id. at 233:19-21. After meeting with Principal McDonough

about the incident, Vazquez never recorded students again. Id. at 241:12-16.

                3. Inappropriate comments

      Regarding the suspenders and belt incident, Vazquez admitted that he talked

to student N.N. about the suspenders, asking him twice why he was wearing

                                      Page 17
suspenders with a belt, but Vazquez “didn’t think [he] was talking loud.” Id. at

247-249, 266. Vazquez claimed he asked this question from his teacher desk. Id.

He denied attempting to humiliate N.N., claiming he was trying to prevent N.N.

from getting made fun of. Id. He could not recall if he had a student turn the light

on and off when he had talked to N.N., but acknowledged he had done so on

previous occasions. Id. at 249. According to Vazquez, if he had done the light

switch example, which he could not recall, it would have been about N.N.’s

response to his questions, not the suspenders themselves. Id. at 249-250. Vazquez

did not feel like N.N. was humiliated or intimidated. Id. at 253.

      When asked about the “well its shows” comment to student G.V., Vazquez

did not deny saying that; instead, he testified he did not remember that happening.

Id. at 254:17-22. He did not remember accusing a student of using the word

“asshole,” and he did not remember asking a boy in class if a female student was

pretty. Id. at 255-256. He denied discussing “coming out” and talking about a girl

wearing “tight little outfit.” Id. at 256-257. He denied calling E.F. a “thespo” and

denied commenting about her appearance in a sexual way. Id. at 259. He further

denied discussing clubbing, being hung-over, or making gay or lesbian references.

Id. at 260-261. Vazquez testified that he was not aware of any negative feelings

E.F. may have had towards him other than perhaps his not going to see her plays.

                                      Page 18
Id. at 260:7-11. He testified that “the number of students that I’ve had and the

number of complaints that you have. As a percentage, and if they were true,

nothing. [sic]” Id. at 263:4-7.

      2. Pertinent Documentary Evidence

           a.   Written student statements regarding video tape incident
                (Exhibit 17)

      Exhibit 17, which was submitted by the administration and admitted by the

Board, was handwritten statements from students obtained by former Principal

McDonough in his investigation into the video tape incident. Id. at 141-142; 449-

457. Vazquez objected to these statements as hearsay, complaining that he could

not cross-examine them. Id. at 141. The Board overruled the objection. Id. at

142:5-6.

      The following are summaries of the student statements contained in Exhibit
17.
                 Student S.G. reported that on April 24, 2012, Vazquez

complained that he did not like her touching her hair during class because it was

distracting. Id. at 450. He had warned her the day before that she should not mess

with her hair during class. Id. She denied touching her hair. Id. Vazquez then set

up the webcam, moved her to the front of the class, and aimed the camera at her.

Id. He said that if it showed she was messing with her hair, he would give her an


                                     Page 19
office referral. Id. She believed she was recorded all class period. Id.

                  Student R.M. stated that Vazquez complained in class that S.G.

was playing with her hair. Id. at 451. Vazquez made S.G. move to the front of the

class and pointed his camera at her to record her all class period. Id. R.M. said

Vazquez recorded S.G. all class period. Id.

                   Student R.M. reported that Vazquez had moved S.G. to the

front of the class for twirling her hair, and video taped her. Id. at 452.

                   Student D.S. wrote that S.G. was twirling her hair in class and

Vazquez constantly asked her to stop. Id. at 453.

                   Student C.C. noted that Vazquez moved S.G. to the front of the

class to videotape the number of times she twirled her hair during class. Id. at

454.

                   Student J.F. stated that when S.G. played with her hair,

Vazquez told her that he was going to videotape her to show how many times she

was doing that. Id. at 455.

                   Student V.V. reported that Vazquez said he wished he could

record how many times S.G. messed with her hair to show how distracting it was,

and that he did record her. Id. at 456.

                   Student V.R. wrote that Vazquez moved a girl to the front of

                                          Page 20
the class for messing with her hair. Id. at 457. He recorded her with his webcam

for the whole class period. Id.

         b. Written student statements regarding inappropriate comments
            (Exhibit 11)

      Exhibit 11, which was submitted by the administration and admitted by the

Board, was handwritten statements from students obtained by Principal Villarreal

in his investigation into Vazquez’ comments to student N.N. about his manner of

dress. See A.R. Vol. II at 413-438. Several of the statements were taken on or

near the day of the incident in question, and some were taken a couple of months

later during the grievance investigation. Id. Vazquez objected to all student

statements as hearsay. Id. at 141, 146.

                  Student N.N. drafted separate statements. Id. at 414, 417. In

his first written statement, he reported generally that Vazquez asked him

“unnecessary questions” about why he was wearing “this” or “that.” Id. at 414. In

his April 25 statement, he provided more specifics, noting that Vazquez asked him

why he chose to wear suspenders and told him “how dumb” he looked in front of

the class. Id. at 417. Vazquez stated, “It looks like your mom dressed you up.”

Id. N.N. further reported that the kids in the class laughed when Vazquez said

these things, and then Vazquez asked N.N. if he wore those things to make himself


                                      Page 21
look stupid. Id.

                    Student K.S. reported that Vazquez had asked N.N., in front of

the class, why he would wear a belt with suspenders. Id. at 415. N.N. appeared

embarrassed. Id.

                    Student C.M. submitted two written statements. Id. at 416,

418. C.M. stated that Vazquez asked N.N. why he was wearing suspenders with a

belt. Id. at 416. When N.N. did not answer, Vazquez stated in a sarcastic tone, “I

asked you if you wore a belt and suspenders on purpose.” Id. Vazquez then said

he wanted to show N.N. how to properly answer a question, and had a student turn

on and off a light. Id.

                    Student G.V. also submitted written statements. Id. at 420-421,

424, 436. G.V. reported that Vazquez surveyed the class about movies they may

watch during the school year. Id. at 421. Someone suggested bringing popcorn,

and G.V. said she would bring two bags – one for her and one to share. Id.

Vazquez said, “Yeah, well it shows.” Id. at 420, 421. G.V. was offended by his

comment because he had implied that she was fat. Id. at 420. He apologized to

G.V. at the end of class. Id. In another statement drafted by G.V., she also

reported that Vazquez had told the class that he liked to go “clubbing” and if he

ever showed up to first period in a bad mood, it was most likely because he was

                                        Page 22
hung-over. Id. at 424. G.V. also stated that E.F. had asked Vazquez for help with

printing, and when Vazquez walked over to her, she said “cancel,” referring to the

computer. Id. at 436. Vazquez asked her if she had called him a name, and then

made the class vote on whether she called him a name. Id. The class voted that

she had said “cancel.” Id.

                 Student E.V. stated that she recalled Vazquez telling G.V.

something in front of the class, which made her cry. Id. at 422. Vazquez asked

E.V. if she “needed help coming out,” implying she was gay in front of the class.

Id. Vazquez referred to student A.M. wearing a tight outfit in front of the class and

then asked a boy in the class if he thought she was pretty. Id. E.V. reported that

Vazquez comes across as trying to be “cool” or relate to the students. Id. E.V.

stated that Vazquez made comments to the class about going clubbing and coming

to work hung-over. Id.

                 Student A.M. reported that Vazquez made a comment to the

whole class about A.M. being cute in a tight outfit when talking about her and a

boy in the class competing for a job, which comment made her uncomfortable. Id.

at 425. She further stated that Vazquez made comments to the class about going

clubbing and getting hung-over. Id. She provided another written statement on

May 3, 2013, in which she reported that student E.F. had asked Vazquez to help

                                      Page 23
her. Id. at 437. When Vazquez came to help her, E.F. said “cancel.” Id. Vazquez

made the class take a vote on whether E.F. had called him “asshole.” Id. All the

students agreed E.F. had only said “cancel.” Id.

                  Student N.D. provided two separate written statements. Id. at

426, 427. In her statements, N.D. stated that Vazquez had told her that when he

thinks of her it brings a smile to his face, which made her feel uncomfortable. Id.

                  Student I.M. shared that Vazquez had commented about a

hypothetical of I.M., a male, and A.M., a female, going to a job interview and that

for A.M. to get the job she would have to wear a “tight little outfit.” Id. at 427.

Vazquez told the class that if I.M. had certain certifications and A.M. did not, A.M.

would need to dress in a tight outfit to qualify for the job. Id.

                  Student E.F. reported that when she wore a skirt to class,

Vazquez asked if she was a cheerleader and told her that she looked nice when she

wore dresses. Id. at 429-434. He told her that he had picked on her because she is

his favorite student and winked at her. Id. On another occasion, she asked

Vazquez for help on the computer, and when he said no, she tried to print out the

computer lesson. Id. at 429-434, 438. When Vazquez started walking towards her,

she asked if he was going to help her, to which he said “what does it look like?” Id.

She then said, “Ok, cancel” because she cancelled her print job. Id. Vazquez

                                        Page 24
asked if she had just called him an “asshole.” Id. He then made the class vote on

whether she called him “asshole.” Id.

      On another occasion, he asked E.F. if she needed help “coming out,”

implying she was gay. Id. at 429-434. He told a male student he was handsome,

and then repeatedly told the class that he was not gay. Id. On another occasion, he

told that class that he once asked a girl to dance but she refused because she was a

lesbian. Id. He said that lesbians should wear shirts saying they are lesbians. Id.

He referred to E.F. as a “thesbo” after she had invited the class to a play she was

in, referring to herself as a “thespian.” Id.

      E.F. stated that Vazquez told G.V. he could tell she liked food and compared

another student to Santa Claus. Id. He also made the class vote on whether female

student A.M. was pretty after he had asked a male student if he thought she was

pretty and the boy did not want to answer. Id. Vazquez also told the class A.M.

would need to wear a “tight little outfit” when applying for a job. Id. Vazquez

told another female student that he wanted to see her if she ever came to school in

yoga pants. Id.

      Vazquez told the keyboarding class that it was not a required course so they

could flip a coin to decide whether they had to take a final or not. Id. He also told

the class that he hates teaching keyboarding. Id.

                                        Page 25
      He told the class that he goes clubbing and discussed getting hangovers from

clubbing. Id. He said if he did not come to class on Thursdays, it would be

because he was hung-over. Id.

      E.F. also reported that Vazquez sometimes would turn off their computer

monitors in the middle of a timed typing test to discuss “unrelated life topics.” Id.

      E.F. also reported that Vazquez had made fun of N.N. for the way he was

dressed. Id.

                 Student J.T. reported that Vazquez made the class vote on

whether E.F. had said something to Vazquez, and the class voted that she had not.

Id. at 435.

          c. Notice of Warning, March 5, 2013 (Exhibit 8)

      Exhibit 8, which was not objected to by Vazquez and was admitted into

evidence, was the Notice of Warning received by Vazquez for comments he had

made to his students.     See A.R. Vol. II at 407-408.        Specifically, Principal

Villarreal noted that he had received a number of complaints concerning Vazquez’

actions and comments towards students, including questioning a student about his

manner of dress when no dress code violation had occurred.             Id.   Principal

Villarreal pointed out Vazquez’ commenting about a student’s suspenders, telling a

student “it shows” after she had mentioned eating a bag of popcorn, accusing a

                                       Page 26
student of calling him a name and having the class vote on it, referring to students

“coming out,” asking another student if a girl was pretty and telling students he

goes clubbing and discussing hangovers. Id. Principal Villarreal directed him to

cease making inappropriate comments in class and to use better judgment in his

choice of words.    Id.   The principal instructed him to conduct himself in a

professional manner and referred him to the Employee Handbook and ethical

standards. Id.

         d. Notice of Warning, April 30, 2012 (Exhibit 9)

      Exhibit 9, which was unobjected to and admitted into evidence, was the

Notice of Warning that Vazquez received on April 30, 2012 for videotaping a

student because she was playing with her hair. See A.R. Vol. II at 409-410.

Principal McDonough issued the warning after speaking with Vazquez about the

incident and after Vazquez admitted to him that he had “pretended” to videotape

the student. Id. Principal McDonough warned him that it is never acceptable to

videotape a student as a means of discipline, and directed him to follow the

District’s discipline management techniques set out in the Student Code of

Conduct. Id.

         e. Notice of Warning, April 13, 2012 (Exhibit 12)

      Exhibit 12, which was unobjected to and admitted into evidence, was the

                                      Page 27
Notice of Warning that Vazquez received on April 13, 2012 after showing the

movie Burlesque in the classroom. See A.R. Vol. II at 439-440. In the Notice,

Principal McDonough noted that Vazquez had admitted to showing the movie, that

it was not in his lesson plans, he had not previewed it, and that he did not have

permission to show it. Id. Principal McDonough directed Vazquez to obtain

approval prior to showing movies, to detail it in his lesson plans, and to preview it

prior to class. Id.

          f. Appraisal

      Vazquez’ April 27, 2013 performance appraisal was admitted into evidence

without objection. Id. at 225, 331-335. In that appraisal, Vazquez received below

expectations ratings on redirecting student behavior and on reinforcing positive

student behavior. Id. He also received below expectations on communications

with students and his classroom environment.         Id. The appraiser noted that

Vazquez had redirected students in an abrasive and sarcastic manner. Id. Also, the

appraiser noted that Vazquez needed to improve on his interactions with students

and redirect them in a positive manner. Id. In the appraisal, another area for

Vazquez to improve on was ensuring his interactions with students were

professional and respectful. Id.




                                      Page 28
D.    Board voted to nonrenew

      At the conclusion of the hearing, the Board voted to nonrenew Vazquez’

term contract. See A.R. Vol. II at 281-282, 552-557.

E.    Appeal to the Commissioner

      On July 2, 2013, Vazquez filed his Petition for Review with the

Commissioner, appealing the District’s decision not to renew his contract and

arguing that the District improperly admitted and relied on hearsay statements in

its nonrenewal decision.    See A.R. Vol. I at 1-4. The Commissioner denied

Vazquez’ appeal on August 21, 2013. See A.R. Vol. I at 5-24. In his decision, the

Commissioner focused on whether a hearsay exception applied to the student

witness statements. See A.R. Vol. I at 5. The Commissioner concluded that liberal

exceptions to hearsay applied, and the student statements were admissible. Id. at

5-24. The Commissioner concluded there was substantial evidence to support the

nonrenewal of Vazquez’ contract. Id.

F.    Appeal to Trial Court

      Vazquez then filed his Original Petition with the district court of Travis

County on October 13, 2013, alleging that the Board’s decision was based entirely

on hearsay statements by individuals who did not appear or testify at the hearing.

See C.R. at 3-6. Vazquez claimed that the evidence did not constitute a valid basis

                                       Page 29
for nonrenewing his contract. Id. He requested that the trial court reverse and

render judgment in his favor. Id.

      All parties filed trial briefs, and the court held oral argument on September

2, 2014. See C.R. at 18-31, 32-103, 104-134, 135-148; see generally R.R. at 1-7.

      After reviewing the record and hearing arguments, the trial court reversed

the Commissioner’s decision on September 3, 2014. See C.R. 152-54. The trial

court held that liberal exceptions to the hearsay rule did not apply and the statutory

right to cross-examine witnesses under §21.207(c) of the Education Code

prevented the admission or consideration of the written student statements. Id.

The trial court remanded the case to the Commissioner with instructions to reverse

the Board’s nonrenewal decision. Id.

      On October 3, both the Commissioner of Education and Los Fresnos CISD

timely filed their respective Notices of Appeal. See C.R. at 155-163. Appellant

Los Fresnos CISD now timely files its Brief and asks that this Court reverse the

trial court’s judgment.




                                       Page 30
                       SUMMARY OF THE ARGUMENT

      Appellant Los Fresnos CISD asserts that the trial court improperly reversed

the Commissioner’s decision. Substantial evidence supported Los Fresnos CISD

Board’s decision to nonrenew Appellee Vazquez’ teacher term contract, and the

nonrenewal decision was not arbitrary or capricious.

      The Rules of Evidence do not apply in a teacher term contract non-renewal

hearing before a school board, as the Legislature did not specify that the Rules

applied, like it did for hearings before an independent hearing examiner. Hearsay

evidence is admissible and can support a finding of substantial evidence in a non-

renewal hearing before a school board.

      Even if the Rules of Evidence do apply, liberal exceptions apply to hearsay

evidence in a teacher term contract non-renewal hearing, permitting the admission

of the student witness statements in this case.

      The right to cross-examine adverse witnesses permitted under Texas

Education Code §21.207(c) does not prohibit the use of student written statements

in a non-renewal hearing before a school board.        The right to cross-examine

witnesses means the right to question witnesses present at the time of the hearing.

Public policy dictates against requiring minors to testify at a teacher’s nonrenewal

hearing.

                                       Page 31
      Even if hearsay statements are not permitted in a non-renewal hearing before

a school board, the non-hearsay evidence presented at Vazquez’ non-renewal

hearing supported a substantial evidence finding in favor of the Board’s

nonrenewal decision. In the alternative, if the student statements are not to be

considered, the trial court should have remanded the case to the Commissioner to

reconsider the evidence in light of the court’s ruling.




                                       Page 32
                                  ARGUMENT

A.    Standard Of Review

      A court can reverse the Commissioner of Education’s decision only if the

decision is not supported by substantial evidence or if the Commissioner’s

conclusions of law are erroneous. See TEX. EDUC. CODE §21.307(f); Montgomery

Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000); McConnell v. Alamo

Heights Indep. Sch. Dist., 576 S.W.2d 470, 475 (Tex. Civ. App. – San Antonio

1978, writ ref’s n.r.e.).   The plaintiff bears the burden of proving that the

Commissioner’s decision was not supported by substantial evidence.           See

Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956

(Tex. 1984); Matthews v. Scott, 268 S.W.3d 162, 172 (Tex. App. – Corpus Christi-

Edinburg 2008, no pet.); Miller v. Houston Indep. Sch. Dist., 51 S.W.3d 676, 680

(Tex. App. – Houston [1st Dist.] 2001, pet. denied).

      “Substantial evidence means more than a mere scintilla; thus, the evidence

may preponderate against the agency’s decision, yet still amount to substantial

evidence.” Matthews, 268 S.W.3d at 172; see Mireles v. Tex. Dep’t of Pub. Safety,

9 S.W.3d 128, 131 (Tex. 1991). The test is whether reasonable minds could have

reached the same conclusion as the Commissioner. See Texas State Bd. of Dental

Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied, 490 U.S.

1080 (1989); Nelson v. Weatherwax, 59 S.W.3d 340, 343 (Tex. App.—Fort Worth


                                      Page 33
2001, pet. denied). If reasonable minds could have reached the same conclusion as

the Commissioner, then the decision is supported by substantial evidence. Nelson,

59 S.W.3d at 343.

      Whether substantial evidence exists to support an agency’s determination is

a question of law. Montgomery Indep. Sch. Dist, 34 S.W.3d at 566. Further, the

substantial evidence standard of review is limited, intentionally giving great

deference to the particular agency in its field of expertise. Farris v. Fort Bend

Indep. Sch. Dist., 27 S.W.3d 307, 311 (Tex. App.—Houston [1st Dist.] 2000, no

pet.). The Court may not substitute its judgment for that of the Commissioner and

“may consider only the record on which the Commissioner reached his decision.”

State v. Pub. Util. Comm’n, 883 S.W.2d 190, 203 (Tex. 1994). The agency

decision is presumed to be valid, and Appellant has the burden to prove its

invalidity. Id.; Farris, 27 S.W.3d at 311; see Brinkmeyer, 662 S.W.2d at 956.

This burden cannot be met “merely by showing that the evidence preponderates

against the agency decision.” Texas Educ. Agency v. Goodrich Indep. Sch. Dist.,

898 S.W.2d 954, 957 (Tex. App. – Austin 1995, writ denied); accord Mireles, 9

S.W.3d at 131.

      With respect to conclusions of law, the Commissioner’s reasoning is

immaterial if the conclusion reached is correct. See Texas Employment Comm’n v.

Hays, 360 S.W.2d 525, 527 (Tex. 1962).            The Court must uphold the


                                    Page 34
Commissioner’s decision on any legal basis shown in the record. See Board of

Trustees of Employees Ret. Sys. v. Benge, 942 S.W.2d 742, 744 (Tex. App.—

Austin 1997, writ denied). The issue before the Court is not whether the agency

reached the correct conclusion, but whether there is some basis in the record for its

action. See City of El Paso v. Public Util. Com’n, 883 S.W.2d 179, 185 (Tex.

1994); see also Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665

S.W.2d 446, 452 (Tex. 1984). A review of this case under the substantial evidence

standard establishes that the decision by the District’s Board of Trustees, and the

affirmation of that decision by the Commissioner of Education, were proper.

Substantial evidence supported the Board’s decision and its decision was not

arbitrary and capricious. The trial court should have affirmed the Commissioner’s

decision. This Court should reverse the trial court’s decision.

B.    The Rules of Evidence do not apply

         1. Differences between a nonrenewal and termination hearing

      Because this is a nonrenewal case, the nonrenewal hearing was governed by

§21.207 of the Education Code. Under §21.207 (b), the nonrenewal hearing “must

be conducted in accordance with rules adopted by the board,” unless the board

elected to use the process established under Subchapter F, which is used for

contract termination proceedings. See TEX. EDUC. CODE §21.207(b). Here, it is

undisputed that the District established its own non-renewal hearing rules, as

                                      Page 35
contemplated by §21.207(b), and the Board itself heard the non-renewal. See A.R.

Vol. II at 125, 291-298.

      The statute requires that the Board consider the record of the hearing and

allow each party to present oral argument. See TEX. EDUC. CODE §21.207 (b-1).

The statute further provides that the teacher may:

      (1) be represented by a representative of the teacher’s choice;
      (2) hear the evidence supporting the reason for nonrenewal;
      (3) cross-examine adverse witnesses; and
      (4) present evidence.

Id. at §21.207 (c).

      Unlike nonrenewal procedures, termination procedures have more specific

statutory requirements. See generally TEX. EDUC. CODE §21.251-21.260. For

example, termination hearings are held before a certified hearing examiner, instead

of before the Board as in nonrenewal hearings. Id. at 21.251-21.255. The hearing

examiner may issue subpoenas. Id. at §21.255. There are no subpoena powers

given to the Board in nonrenewal hearings. Further, for termination hearings, the

Legislature specifically stated that the “Texas Rules of Evidence apply at the

hearing.” Id. at §21.256 (d). There is not a similar provision for nonrenewal

hearings. The statute also gives the teacher the right to:

      (1) be represented by a representative of the teacher’s choice;
      (2) hear the evidence on which the charges are based;
      (3) cross-examine each adverse witness; and
                                       Page 36
      (4) present evidence.

Id. at §21.256 (b). The statute mandates that the termination hearing must be

conducted in the same manner as a bench trial. Id. at §21.256 (e).

      Because the Legislature drafted the nonrenewal and termination procedures

differently it clearly did not intend for the Rules of Evidence to apply in

nonrenewal hearings.

         2. Statutory construction of nonrenewal procedures

                  a. Legislative intent

      When construing a statute, the court’s primary objective is to determine and

give effect to the Legislature’s intent. See TEX. GOV’T CODE §312.005; TGS-

NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). To discern

the Legislature’s intent, the court begins with the language of the statute itself and

is bound by the statute’s assigned meaning of particular words. See Combs, 340

S.W.3d at 438; Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.

2002); see also TEX. GOV’T CODE §312.002. Undefined terms are given their

ordinary meaning, unless a different or more precise definition is apparent from the

statute’s context. Combs, 340 S.W.3d at 438; In re Hall, 286 S.W.3d 925, 928-29

(Tex. 2009). Statutes should be considered as a whole rather than by their isolated

provisions. See Combs, 340 S.W.3d at 438.

                                       Page 37
      It is presumed that the Legislature purposefully chose the words it used in

the statute, and that the Legislature purposefully did not choose words that were

omitted. Id.; see also In Re M.N., 262 S.W.3d 799, 802 (Tex. 2008). That is,

“each word in the statute was put there for a purpose and that each word not in the

statute was omitted for a purpose.” In re General Elec. Co., 271 S.W.3d 681, 687

(Tex. 2008). “When the Legislature employs a term in one section of a statute and

excludes it in another section, the term should not be implied where excluded.”

Laidlaw Waster Sys. (Dallas) Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.

1995); see Hardy v. Matter, 350 S.W.3d 329, 332 (Tex. App. – San Antonio 2011,

pet. dism’d).

      If the Legislature’s intent is not clear in the plain language of the statute, the

court “may resort to additional construction aids, such as the objective of the law,

the legislative history, the common law or former statutory provisions, including

laws on the same or similar subject, and the consequences of a particular

construction.” Bruington Engineering, Ltd v. Pedernal Energy, L.L.C., - S.W.3d - ,

No. 04-13-558-CV, 2014 WL 4211024 at *3 (Tex. App. – San Antonio Aug. 27,

2014, no pet.); see Galbraith Engineering Consultants, Inc. v. Pochuca, 290

S.W.3d 863, 867-68 (Tex. 2009).




                                       Page 38
      Because the Legislature purposefully and explicitly indicated that the Rules

of Evidence apply to nonrenewal and termination hearings before an administrative

law judge, but purposefully did not do so for nonrenewal hearings before a school

board, the Rules of Evidence clearly do not apply to nonrenewal hearings before

the Board. A school board is made of 7 lay persons, elected by their community,

with varying degrees of sophistication and education levels. Most school board

members are not attorneys or otherwise versed in legal procedures or evidentiary

matters and should not be expected to know the legal requirements concerning

evidence, hearsay, or exceptions to the hearsay rules. See Boykins v. Fairfield

Board of Educ., 492 F.2d 697, 701 (5th Cir. 1974), cert. denied 420 U.S. 962

(1975). As stated by the Fifth Circuit, the court should “decline to place upon a

board of laymen the duty of observing and applying the common-law rules of

evidence.” Id.

                 b. Commissioner’s interpretation

      Additionally, courts typically defer to the Commissioner of Education’s

interpretation of provisions in the Education Code, unless the interpretation is

“plainly erroneous or inconsistent with the language of the statute, regulation, or

rule.” See Combs, 340 S.W.3d at 438. The Commissioner’s interpretation “is

entitled to serious consideration.”   Id.   This is especially so when there is

                                      Page 39
vagueness, ambiguity, or “room for policy determinations” in the statute or

regulations. Id.

       The Commissioner has also interpreted the Education Code as not requiring

the Rules of Evidence to apply at a nonrenewal hearing before a School Board.

See Green v. Brazosport Indep. Sch. Dist., Dkt. No. 083-R1-0512 (Comm’r Educ.

2012)2; Dews v. Tyler Indep. Sch. Dist., Dkt. No. 053-R1-0508 (Comm’r Educ.

2008); see also Whitaker v. Moses, 40 S.W.3d 176, 179 (Tex. App. – Texarkana

2001, no pet.); Wilson v. Board of Education, 511 S.W.2d 551, 555-56 (Tex. App.

– Fort Worth 1974, writ ref’d n.r.e) (finding admission of hearsay evidence before

school board did not warrant reversal because such board is not “confined to the

niceties of a trial”); Boykins, 492 F.2d at 701 (holding due process was not violated

by relying on hearsay statements in school disciplinary expulsion hearing).

       Thus, based on the rules of statutory construction and the Commissioner’s

interpretation of the applicable laws, the Rules of Evidence do not apply in

nonrenewal hearings before a school board. The trial court erred in applying the

hearsay rule to exclude the student statements in this case.

C.     Hearsay evidence can support substantial evidence



2
 The Commissioner’s decisions are located at http://tea.texas.gov/commissioner_decisions/ (last
visited January 12, 2014).

                                           Page 40
      Hearsay evidence can be proper evidence in a nonrenewal hearing and can

support a finding of “substantial evidence.” Notably, a teacher is not entitled to

due process in a nonrenewal hearing; a teacher does not have a protected property

interest in a contract beyond its term. See TEX. EDUC. CODE §21.204 (e); Stratton

v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29-30 (Tex. App. – Austin 1999, no writ).

Thus, there are no due process concerns regarding the admissibility or use of

hearsay in a nonrenewal hearing. As discussed below, the Fifth Circuit as well as

sister state courts permit the use of hearsay evidence to support findings of

substantial evidence in administrative proceedings. The Texas state cases that

have held otherwise are not applicable to the case at bar.

         1. Texas school cases

      In the Fort Worth Court of Appeals Wilson case, a teacher appealed the

school board’s decision to move him from a continuing contract to a probationary

contract. Wilson, 511 S.W.2d at 552 He appealed the board’s decision to the

Commissioner of Education and then to the trial and appeals courts. Id. at 552-

554. In deciding to change the teacher’s contract status, the board admitted into

evidence hearsay evidence. Id. at 554-556. On appeal, the Fort Worth Court of

Appeals found that the school board could not be confined to “the niceties of a

trial,” and that the board’s decision was not reversible merely because hearsay

                                       Page 41
evidence had been admitted or considered by the board. Id. at 555-556. “Where

hearsay evidence has been received by the board, it is the duty of the trial

court…to ‘test’ the whole of the evidence.” Id. The court held that the presence of

hearsay did not make the board’s decision arbitrary or capricious. Id.

      Only one Texas state case, from the Texarkana Court of Appeals, was found

concerning the use of hearsay specifically at a nonrenewal hearing. See Peaster

Indep. Sch. Dist. v. Glodfelty, 63 S.W.3d 1 (Tex. App. – Texarkana 2001, no pet.).

As set out below, Glodfelty is not applicable here. No other Texas cases were

found that specifically address the admissibility of hearsay and whether hearsay

evidence can constitute substantial evidence in a nonrenewal hearing. It appears to

be a matter of first impression for this Court.

      In Glodfelty, two teachers were nonrenewed based on allegations that they

had inappropriate relationships with a student. Glodfelty, 63 S.W.3d at 3. The sole

reason given for proposing the nonrenewals was Board policy prohibiting “[a]ny

activity…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.” Id. at 5. At the nonrenewal hearing before the Board, the student who

accused the teachers of the misconduct did not testify. Id. at 6. Instead, the

superintendent testified as to what the student had reported to him.            Id.

                                       Page 42
Additionally, other witnesses testified as to the community’s knowledge of the

allegations and its belief concerning the teachers’ impaired effectiveness. Id. The

school district nonrenewed the teachers’ contracts. Id.

        On appeal, the Commissioner upheld the nonrenewals, holding that the

District did not need to prove that the teachers had engaged in inappropriate

activity, but only the community’s reaction and diminished effectiveness of the

teachers. Id. at 8. The appellate court disagreed, holding that under the Board’s

policy, the District was required to prove that inappropriate activity between the

student and teachers had occurred, not just that allegations had been made. Id. at

9-10.    The court found that the school’s attorney had stated throughout the

nonrenewal hearing that it was not offering the testimony concerning the student’s

allegations for the truth of the matters asserted, but to show its widespread

publicity. Id. Because the attorney had so limited the evidence, it could not be

used to prove an inappropriate activity had occurred. Id. The court further noted

that rumors and gossip could not suffice as evidence to support a nonrenewal;

according to the court, allowing nothing more than rumors to support a nonrenewal

would violate notions of fairness. Id. at 10, 14.

        The Glodfelty case is not controlling and is distinguishable from the case at

bar. In Glodfelty, the court assumed without discussion that the Rules of Evidence

                                       Page 43
applied at nonrenewal hearings and applied the Rules concerning hearsay. Id. at 9.

As noted supra, the Rules do not apply to hearings before a school board.

Additionally, the school district in Glodfelty had specifically limited the hearsay

testimony to prove only the publicity within the community and not the allegations

of inappropriate activity itself.   Id. at 9-10.   The court’s concerns centered

primarily on the unfairness of a nonrenewal based on mere rumor or gossip. Id. at

14. Here, the nonrenewal decision was not based on rumors, gossip, or community

reactions. The nonrenewal was based on corroborating student statements, whom

the school investigators found to be telling the truth as well as Vazquez’ own

admissions. Glodfelty is not controlling and is inapplicable here. As in Wilson, the

admission of hearsay does not warrant reversal of the board’s decision.

         2. Other Texas cases not applicable

      Some Texas state courts have addressed whether hearsay evidence can

constitute “substantial evidence” in other types of administrative hearings. See

Lewis v. Southmore Savings Ass’n, 480 S.W.2d 180, 186 (Tex. 1972) (holding

hearsay rule applies in savings and loan commissioner administrative hearings);

Benson v. San Antonio Savings Ass’n, 374 S.W.2d 423, 428-29 (Tex. 1963)

(holding hearsay evidence could not support substantial evidence finding in

savings and loan case); Railroad Comm’n v. Southern Pacific Co., 468 S.W.2d

                                      Page 44
125, 129 (Tex. App. – Austin 1971), writ ref’d n.r.e., 471 S.W.2d 39 (Tex. 1971)

(concluding hearsay could not be used to support substantial evidence finding in

Railroad Commission case); Gerst v. Gibraltar Savings Ass’n, 413 S.W.2d 718,

723 (Tex. Civ. App. – Austin 1967), writ ref’d n.r.e., 417 S.W.2d 584 (Tex. 1967)

(finding hearsay evidence had no probative force and was unreliable, and therefore

could not support substantial evidence in savings and loan case).

      Although these cases discussed hearsay in the context of substantial

evidence, they are sufficiently distinguishable to be inapplicable here.      For

instance, the savings and loan and railroad cases follow a different set of

administrative guidelines and review procedures.          The savings and loan

administrative procedures specifically follow the Rules of Evidence, allow

issuance of subpoenas, and have hearing officers preside over the proceedings. See

TEX. FINANCE CODE §11.202 (hearing officer); 7 TEX. ADMIN. CODE §9.18

(subpoenas), §9.26 (Rules of Evidence). The Railroad commission procedures

likewise follow the Rules of Evidence and allow the issuance of subpoenas. See 16

TEX. ADMIN. CODE §1.85 (subpoenas), §1.101 (Rules of Evidence).

      Unlike other administrative agencies, school boards lack subpoena powers

and the Rules of Evidence do not apply to hearings before them. Moreover, the

school board is made up of lay people, who are not sophisticated in rules of

                                      Page 45
evidence as a hearing officer would be.         The inapplicability of the Rules of

Evidence, the make-up of a school board, the lack of a property interest in a

contract renewal, and the lack of subpoena power differentiate nonrenewal cases

from the typical administrative agency cases.

      Additionally, a greater public policy concern arises in the context of

nonrenewal cases that are based on teacher-student interactions, especially when

the minor students are the only witnesses to the incidents in question. A ruling that

written statements from students are not admissible based on hearsay is tantamount

to requiring minors to testify before a school board in order for a school to even be

able to nonrenew a teacher. Due to the unique nature of teacher nonrenewal

hearings, hearsay evidence – especially statements from minors - clearly should be

allowed in nonrenewal hearings before a school board.

         3. Fifth Circuit cases

      In the Fifth Circuit, it is well-settled that hearsay evidence is admissible in

administrative proceedings. See School Bd. of Broward Co., Fla. v. Department of

Health, Education, and Welfare, 525 F.2d 900, 904-05 (5th Cir. 1976). Even

though the evidence is admissible in administrative hearings, the next

consideration is the weight to given such evidence in a “substantial evidence”

review. Id.

                                      Page 46
      The Fifth Circuit has rejected a per se rule that hearsay evidence cannot

constitute substantial evidence. Id. at 906 (citing Richardson v. Perales, 402 U.S.

389 (1970)).   Instead, the Court looks at factors that would “assure underlying

reliability and probative value” of the hearsay evidence to determine whether the

hearsay constitutes substantial evidence.      Id.; see Young v. U.S. Dep’t of

Agriculture, 53 F.3d 728, 730 (5th Cir. 1995)(noting that in “determining whether

hearsay can constitute substantial evidence ‘we must look to those factors which

‘assure underlying reliability and probative value’”). The inability to procure

testimony, such as lack of subpoena power, “does demand that we be more flexible

by allowing an administrative determination to rest on the only available

evidence.” School Bd. of Broward Co., 525 F.2d at 907. Additional factors the

Court considers are whether the witnesses had an interest in the controversy and

whether the hearsay evidence was controverted. Id.

         4. Sister state courts

      Several sister state courts allow the use of hearsay evidence in teacher

contract termination cases. See, e.g., Board of Directors of Ames Community Sch.

Dist. v. Cullinan, 745 N.W.2d 487, 494 (S. Ct. Iowa 2008) (upholding teacher

termination based on student and parent complaints made to principal, although

reports were hearsay); Hierlmeier v. North Judson-San Pierre Bd. of Sch. Trustees,

                                     Page 47
730 N.E.2d 821 (Ind. Ct. App. 2000) (affirming school’s decision to cancel

teacher’s contract based on testimony of school counselor concerning reports she

had received from students); Doty v. Tupelo Pub. Sch. Dist., 751 So.2d 1212, 1216

(Miss. Ct. App. 1999) (noting Mississippi statute permits hearsay evidence in

teacher nonrenewal hearings). The Indiana Court of Appeals found that allowing

the hearsay testimony of students in teacher contract proceedings is more

compelling than in typical administrative cases; the interest of protecting students

from having to testify in the presence of their peers or teachers justifies the

admission of such hearsay testimony. See Hinkle v. Garrett-Keyser-Butler Sch.

Dist., 567 N.E.2d 1173, 1178 (Ind. Ct. App. 1991).

      In Cullinan, several parents and students filed written complaints against the

plaintiff coach about his demeanor towards student athletes. Cullinan, 745 N.W.2d

at 489-90.   The athletic director and then later the principal investigated the

multiple complaints concerning the coach. Id. The superintendent recommended

that the Board terminate the coach’s teaching contract, which it did. Id. at 493.

      On appeal, the court upheld the termination decision. Id. 498. The court

found that the hearsay evidence of the parent and student claims was admissible,

and that a multi-factor test applied to determine how much weight should be

accorded the hearsay testimony. Id. at 494. The court took into account the

                                      Page 48
following factors: the circumstances of the case, the credibility of the witnesses,

the credibility of the declarant, the circumstances in which the statements were

made, and the consistency of the statements with other corroborating evidence. Id.

In finding the hearsay evidence reliable, the court noted that the administrative

reports had been drafted as part of the school administrator’s duties; the writers of

the complaints had signed them and were identifiable, allowing the coach the

ability to call them as witnesses or otherwise cast doubt on their motivations; the

statements were made under circumstances tending to establish credibility, being

made shortly after the event in question and made to trusted officials; and the

hearsay testimony was consistent among the witnesses. Id. These factors weighed

in favor of the reliability of the hearsay statements, permitting their use in the

termination hearing. Id.

      Here, as discussed in the sister state courts, a nonrenewal hearing is a unique

administrative proceeding. Often, nonrenewals are based on a teacher’s behaviors

or conduct towards or in the presence of minor students – many of which are

elementary-aged. The court should not require minor children to testify at every

nonrenewal hearing in which students are involved. The interest of protecting

students from having to testify live in the presence of a teacher accused of

misconduct justifies allowing written student statements in such hearing in lieu of

                                      Page 49
live testimony. See Hinkle, 567 N.E.2d at 1178. It seems implausible that a court

would tie the hands of a school district and force it to call a child to the stand to

testify against her own teacher, putting the child in the uncomfortable position of

testifying against her teacher and being questioned by attorneys, in essence putting

the child in the middle of a legal fight between her teacher and her school. Public

policy dictates against doing so, especially in the absence of a protected due

process right of the teacher.

      Moreover, in the case at bar, the circumstances surrounding the written

statements weigh in favor of their reliability and use in this proceeding. The

statements were obtained by the school principal and another administrator, whose

duty it was to investigate such complaints. The administrators asked open-ended

questions and determined the students were credible. The students wrote their own

statements and signed them; they were identifiable. Vazquez received copies of

the statements before the hearing, and could have called any of the students or

other witnesses to cast doubt on their credibility or motives. The statements were

in close proximity to events in question.       Importantly, the various students’

statements were consistent.

      Additionally, Vazquez did not deny all of the allegations made by the

students. He admitted to “pretending” to record a student. He also admitted to

                                      Page 50
talking to N.N. about his suspenders, and testified that he “did not remember”

some of the other incidents that were alleged, such as having the class vote if a

student called him “asshole,” turning on and off the light, or asking a male student

if a female student was pretty. Vazquez did not testify that any of these students

had ulterior motives or otherwise were not credible. These factors justify a finding

on reliability and probative value to the statements.

      The trial court erred in not considering the student statements substantial

evidence supporting nonrenewal. Accordingly, the trial court’s judgment should

be reversed and the Commissioner’s decision affirmed.

D.    Even if the Rules of Evidence apply, liberal exceptions apply to hearsay
      evidence

      Even if the Rules of Evidence apply or the hearsay rule otherwise applies to

what may used as “substantial evidence,” which the District denies, the trial court

should have applied the liberal exceptions for hearsay in a nonrenewal hearing. In

Lewis, the Texas Supreme Court stated that “in administrative hearings

considerable discretion is permitted in allowing evidence to be introduced by virtue

of the liberal exceptions to the rule.” Lewis, 480 S.W.2d at 186.


      Additionally, the Commissioner has interpreted the Education Code as

permitting liberal exceptions for hearsay evidence in nonrenewal proceedings, and


                                       Page 51
his interpretation is entitled to great deference. See Combs, 340 S.W.3d at 438.

The liberal exceptions applied by the Commissioner in this case are set out in the

Administrative Procedures Act. See TEX. GOV’T CODE §2001.081. The hearsay

evidence may be considered if it is (1) necessary to ascertain acts not reasonably

susceptible of proof under the rules, (2) not precluded by statute, and (3) of a type

on which a reasonably prudent person commonly relies. Id.

      These exceptions also comport with the standards as set out by the Fifth

Circuit in other administrative contexts.        That is, factors that would “assure

underlying reliability and probative value” should determine whether the hearsay

constituted substantial evidence. School Bd. of Broward Co., 525 F.2d at 904-05.

These factors include (1) whether the parties had the ability to procure testimony,

such as through subpoena power, (2) whether the witnesses had an interest in the

controversy, and (3) whether the hearsay evidence was controverted. Id. Other

reliability factors, as discussed in sister state courts, such as (1) circumstances of

the case, (2) circumstances in which the statements were made, and (3) consistency

of the statements with corroborating evidence dictate towards the admissibility and

weight of the student statements. See Cullinan, 745 N.W.2d at 494.

      Using the factors under §2001.081, the student statements meet the

requirements for the administrative exception to hearsay.        First, the students’

                                       Page 52
statements are not reasonably susceptible to proof, in that the District lacked

subpoena power to compel their attendance. Additionally, as discussed supra,

policy considerations of not forcing minor children to testify against a teacher and

be cross-examined dictate against making their live testimony required.

      Second, no statute precludes the admission of student statements.

Additionally, the third factor, whether the statements are of a type on which a

reasonably prudent person commonly relies, is met here. The statements were

taken as part of the school investigation into the complaints against Vazquez. The

investigators asked open ended questions and selected students randomly from the

class rosters. There was no evidence of any conspiracy or ulterior motive of the

students. It was reasonable for the administrators to rely on the statements in

conducting the investigation and making conclusions and recommendations based

on those statements. Cf. Brauninger v. Motes, 260 Fed. Appx. 634, 636-37 (5th

Cir. 2007) (holding manager’s report, which contained witness statements, was

admissible since it showed what the manager relied on in making his employment

discharge recommendation), cert. denied, 553 U.S. 1065 (2008); Broughton v.

Livingston Indep. Sch. Dist., No. 9:08-CV-175, 2010 WL 4453763 at *4 (E.D. Tex.

Nov. 3, 2010) (allowing written student statements into evidence over hearsay




                                      Page 53
objection because such statements reflect what was reported to school officials and

information relied on in making termination recommendations).

        Additionally, the reliability factors delineated by the Fifth Circuit and sister

state courts also are met here. Here, the students wrote their own statements,

signed them, and were identifiable. Vazquez could have asked them to testify, had

other students testify to contradict the statements, put on evidence concerning the

motives or credibility of the students, or otherwise demonstrated the falsity of the

allegations. See Cullinan, 745 N.W.2d at 494.

        The trial court erred in not applying the liberal exceptions to the hearsay

rule.   The student statements met the liberal exceptions to the hearsay rule

applicable to administrative hearings. This Court should reverse the trial court and

affirm the Commissioner’s decision.

E.      The right to cross-examine adverse witnesses under Texas Education Code
        §21.207(c) does not prohibit the use of hearsay statements in a nonrenewal
        hearing before a school board

        In its order, the trial court found that allowing the student statements into

evidence would violate § 21.207(c) of the Education Code, which permits teachers

to cross-examine adverse witnesses. The District contends that the right to cross-

examine witnesses, as contemplated in the statute, means those witnesses




                                        Page 54
physically present and called to testify at the hearing. The admission of the student

statements did not violate that provision.

      No Texas cases were located interpreting the provisions of Education Code

§21.207(c) concerning the cross-examination of witnesses. Other state and federal

courts have interpreted the right to “cross-examine adverse witnesses” as those

witnesses physically present at the hearing, and thus admitted hearsay statements

into evidence. This interpretation is valid, especially in cases such as this one

where neither party can subpoena witnesses in a nonrenewal hearing before a

Board. In the Tenth Circuit, the court found that a teacher’s right to cross-examine

adverse witnesses in her termination hearing was not violated when the teacher

knew the identities of the persons who had made the out of court statements, but

did not request those witnesses’ attendance at the hearing. W. v. Grand Cnty., 967

F.2d 362, 369 (10th Cir. 1992). Under those circumstances, the court held that the

teacher could not complain of her inability to confront the adverse witnesses. Id.;

Accord Bradley v. Colonial Mental Health and Retardation Services Board, 856

F.2d 703, 708-10 (4th Cir.1988) (denying employee’s due process claim based on

right to confront adverse witnesses when employee knew identity of accusers,

failed to call them as witnesses, and did not show any restrictions to calling them

as witnesses).

                                       Page 55
      Interpreting a similar statutory provision, an Alabama court found that the

statutory right to confront adverse witnesses does not preclude the admission of

hearsay in a teacher contract hearing. Wright v. Marsh, 378 So. 2d 739, 741-42

(Ala. Civ. App.) writ denied sub nom. Ex parte Marsh, 378 So. 2d 742 (Ala. 1979).

The court rejected the teacher’s argument that allowing hearsay testimony violated

her statutory right of cross-examination.      Id. Because there was no statute

preventing the consideration of hearsay in such administrative hearings, the Board

could consider hearsay evidence and doing so did not violate the statutory right to

cross-examine witnesses. Id.

      Here, Vazquez was provided copies of the student statements prior to the

nonrenewal hearing, he knew the names of the students providing the statements,

he was afforded the opportunity to challenge the statements directly to determine

whether inconsistencies existed, and he had the opportunity to challenge the

interrogation techniques used in the investigation process. He was given the

opportunity to cross-examine all witnesses who appeared at the hearing. The spirit

and the letter of the law were met in this case. Moreover, as discussed supra,

public policy dictates against requiring children to testify in nonrenewal

proceedings, placing them in the middle of their teacher and the school or

otherwise having to face their teacher who has been accused of misconduct.

                                     Page 56
      As in the sister court cases considering a similar statutory provision,

Vazquez’ statutory right to cross-examine witnesses was not violated. This was

not a due process hearing; Vazquez had no property interest or due process rights.

He was afforded all of his Chapter 21 statutory rights in the nonrenewal process.

The trial court erred in finding that the consideration of the student statements

violated §21.207.

F.    Even if hearsay statements are not permitted, the non-hearsay evidence
      constituted substantial evidence supporting the Board’s decision

      Even if the students’ written statements are not considered for substantial

evidence purposes, the non-hearsay evidence constituted substantial evidence

supporting the Board’s decision. Vazquez admitted that he showed the movie

Burlesque in class, he had not first previewed the movie, he did not ask permission

to show it, and he did not include it in his lesson plans for that day. See A.R. Vol.

II at 242-245, 264. He acknowledged he was written up for the incident. Id. at

245. He further admitted that he indeed did use a web camera to record a female

student in his class as a means of corrective discipline, albeit he “pretended” to

video tape her. Id. at 233-234. Regardless of whether it was because she was

twirling her hair, as the students said, or simply because she was “off-task” as




                                      Page 57
Vazquez claimed, he conceded he had pretended to record her in an attempt to get

her to conform her behavior. Id. He was written up for this incident.

      Additionally, Vazquez acknowledged that he indeed did confront student

N.N. about his wearing suspenders with a belt, when such was not a dress code

issue. Id. at 247-249, 266. He further admitted to having a student turn off and on

the lights as a means to illustrate how to answer a question when asked, but could

not remember if he had done so when N.N. did not answer his question about the

suspenders. Id. at 249-250.

      Principal Villarreal testified that he conducted an investigation into the

allegations concerning Vazquez. He met with the students involved and found

them to be credible and telling the truth. Based on his interviews with the students

and his conversation with Vazquez, he concluded that Vazquez indeed did speak

with students in an inappropriate, humiliating and intimidating manner; Ms.

Amaro-Sibaja reached the same conclusion. See Bauninger, 260 Fed. Appx. at

636-37 (investigator’s findings used to support termination); see also Broughton,

2010 WL 4453763 at *4.

      When confronted at the hearing about some of the incidents alleged with the

students, Vazquez did not deny that they occurred; instead, he could not remember

if he told G.V. “well it shows” in reference to her eating popcorn, he could not

                                      Page 58
remember if he accused a student of saying “asshole” and had the class vote on it,

and he could not remember if he asked a boy if a girl in the class was pretty. Id. at

254, 256-257.

      Additionally, Vazquez’ April 2013 evaluation, which was admitted without

objection, showed that he received below expectations ratings on redirecting

disruptive behavior and reinforcing desired behaviors.       Id. at 331-335.     The

evaluator noted Vazquez at times had redirected students in an abrasive and

sarcastic manner. Id. The appraisal also noted that Vazquez needed to improve on

ensuring his interactions with students were professional and respectable. Id.

      Thus, in a one year period, Vazquez had received three Notices of Warning

concerning his poor judgment and unprofessional behavior with students as well as

received an appraisal in which it was noted that he was abrasive and sarcastic to

students in the classroom. His admissions along with his failure to deny some of

the unprofessional behavior (instead, he “did not remember” them happening) are

substantial evidence supporting the Board’s decision to nonrenew his contract.

Moreover, his admissions combined with administrators’ conclusions from their

investigation also constitute substantial evidence supporting the nonrenewal – even

without the admission of the students’ written statements. As a result, the trial




                                      Page 59
court erred in finding a lack of substantial evidence to support the Board’s decision

without the students’ statements as evidence.

G.    In the alternative, if the Court finds that hearsay evidence should have
      been excluded, the case should be remanded to the Commissioner for
      further findings based on the admissible evidence.

      In the alternative, if the Court finds that the student statements should have

been excluded or that they cannot be considered for purposes of substantial

evidence, the Court can remand the case to the Commissioner for further findings.

When an appellate court finds that hearsay was improperly admitted, the proper

course is to remand the case for a new trial. Mary Lee Foundation v. Texas

Employment Comm’n, 817 S.W.2d 725, 729 (Tex. App. – Texarkana 1991, writ

denied); see also Yselta Indep. Sch. Dist. v. Meno, 933 S.W.2d 748, 753-54 (Tex.

App. – Austin 1996, writ denied) (remanding case to Commissioner for

reconsideration when improper standard of review was applied); Amarillo Indep.

Sch. Dist. v. Meno, 854 S.W.2d 950, 958-59 (Tex. App. – Austin 1993, writ

denied) (reversing trial court with instructions to remand to Commissioner for

further proceedings). The trial court erred by remanding with instructions to the

Commissioner to reverse the Board’s decision. When the trial court excluded the

student statements from consideration, the trial court should have remanded the

case with instructions to reconsider the evidence in light of the court’s ruling. If

                                      Page 60
this Court decides the student statements were not admissible and decides not to

consider the remaining evidence for substantial evidence purposes, the Court

should remand the case to the Commissioner for reconsideration of the evidence in

light of the Court’s ruling.

                          CONCLUSION AND PRAYER

      This Court must reverse the trial court’s judgment and affirm the

Commissioner’s decision, upholding the nonrenewal decision.

      WHEREFORE, PREMISES CONSIDERED, Appellant Los Fresnos

Consolidated Independent School District prays that this Court reverse the trial

court’s Order and affirm the Commissioner’s decision. Appellant requests that the

Court grant all such other and further relief, special or general, at law or in equity,

to which Appellant shows itself justly entitled.

                                        Respectfully submitted,


                                 WALSH, ANDERSON, GALLEGOS,
                                    GREEN & TREVIÑO, P.C.
                                    STACY T. CASTILLO
                                    State Bar No. 00796322
                                    scastillo@wabsa.com
                                    D. CRAIG WOOD
                                    State Bar No. 21888700
                                    cwood@wabsa.com
                                    ELIZABETH G. NEALLY
                                    State Bar No. 14840400
                                    eneally@wabsa.com

                                       Page 61
100 N.E. Loop 410, #900
San Antonio, Texas 78216
(210) 979-6633
(210)979-7024 (telecopier)

/s/ Stacy T. Castillo
STACY T. CASTILLO
State Bar No. 00796322

ATTORNEYS FOR APPELLANT
LOS FRESNOS CONSOLIDATED
INDEPENDENT SCHOOL DISTRICT




Page 62
                         CERTIFICATE OF SERVICE


      I do hereby certify that a true and correct copy of the foregoing Brief of
Appellant Los Fresnos Consolidated Independent School District was on this 16th
day of January 2015, sent by email and certified mail, return receipt requested to:

Mark W. Robinett
Brim, Arnett, Robinett & Conners, P.C.
2525 Wallingwood Drive, Building 14
Austin, TX 78746
mrobinett@brimarnett.com

Jennifer Hopgood
Nichole Bunker-Henderson
Assistant Attorneys General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.Hopgood@texasattorneygeneral.gov
Nichole.Bunker-Henderson@texasattorneygeneral.gov



                                            /s/ Stacy T. Castillo
                                            STACY T. CASTILLO




                                     Page 63
                            RULE 9.4 (i) Certification

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the

number of words in this brief, excluding those matters listed in Rule 9.4 (i)(1), is

12,861.



                                              /s/ Stacy Tuer Castillo
                                              STACY TUER CASTILLO




                                       Page 64
                                                APPENDIX

Commissioner’s Decision ......................................................................................... A

Trial Court’s Final Judgment .................................................................................... B

Texas Education Code §21.207 ................................................................................ C




                                                    Page 65
APPENDIX A
                             DOCKET NO. 062-Rl-07-2013


JORGE VAZQUEZ                                §           BEFORE THE
                                             §
                                             §
                                             §
                                             §
v.                                           §    COMMISSIONER OF EDUCATION
                                             §
                                             §
LOS FRESNOS INDEPENDENT                      §
SCHOOL DISTRICT                              §           THE STATE OF TEXAS

                       DECISION OF THE COMMISSIONER

                              Statement of the Case
       Petitioner, Jorge Vazquez, complains of the decision of Respondent, Los Fresnos
Independent School District, to nonrenew his term contract. Christopher Maska is the
Administrative Law Judge appointed by the Commissioner of Education to hear this
cause. Petitioner is represented by Mark W. Robinett, Attorney at Law, Austin, Texas.
Respondent is represented by Robb D. Decker, Attorney at Law, San Antonio, Texas.
       In the present case, the district's decision to nonrenew Petitioner's term contract
is affirmed. This case concerns what exceptions to the hearsay rule apply when a school
district hears a proposal to nonrenew a term contract and whether the fact that there were
student and parent complaints is alone sufficient to nonrenew a term contract.
       In the local record there are written student statements that constitute hearsay that
were admitted over a hearsay objection. The issue is whether a hearsay exception applies
to the documents.     Petitioner contends that the Texas Rules of Evidence apply.
Respondent contends that they do not. The Commissioner has not previously ruled on
the issue of whether the liberal exceptions to the hearsay rule that generally apply to
administrative hearings apply when a school board hears a case concerning the proposed
nonrenewal of a term contract. However, in several cases the Commissioner applied the
exceptions to the hearsay rule found in the Texas Rules of Evidence and did not consider



062-RI -07-2013
the liberal exceptions to the hearsay rule that normally apply to administrative hearings.
In the past, the Commissioner has excluded written or reported student statements as
hearsay. Whether the liberal administrative exceptions to the hearsay rule apply, needs to
be considered.
         It is concluded that at least the exceptions to the hearsay rule which generally
apply to administrative cases apply when a school board hears a proposed nonrenewal.
This is due to long standing Supreme Court authority. It is also due to the fact that under
SB I when an Independent Hearing Examiner hears a proposed nonrenewal, the Texas
Rules of Evidence explicitly apply and when evidence is heard by a school board the
Texas Rules of Evidence do not explicitly apply.
         Due to SB 1 taking away the property interest that teachers used to have in term
contracts after the expiration of the contracts' terms, it may be that even a more liberal
standard is appropriate. However, in the present case, it is not necessary to reach that
issue.    It is determined that under the liberal exceptions to the hearsay rule for
administrative proceedings that the written student statements at issue were properly
admitted.
         It is also determined that the mere fact that student and parent complaints were

made in the present case is not sufficient to support the nonrenewal of Petitioner's
contract. Respondent's board did not create a policy reason for the nonrenewal of a term
contract that parent or student complaints were made. While the mere fact of filing of a
complaint is not sufficient to support a nonrenewal, the student complaints at issue do
constitute evidence for determining whether there is substantial evidence to support the
nonrenewal. In the present case, it is found that there is substantial evidence to support
Respondent's decision to nonrenew Petitioner's contract.




062-R1-07 -2013                            -2-
                                             Findings of Fact
         After due consideration of the record and matters officially noticed, it is
concluded that the following Findings of Fact are supported by substantial evidence and
are the Findings of Fact that best support Respondent's decision I_
         I.      Petitioner was employed as a teacher by Respondent under a term contract

for the 2012-2013 school year.
         2.      Petitioner publicly made fun of students' weight and appearance and
otherwise disparaged students and made statements which a reasonable person would
have known would make the students feel uncomfortable during the 2012-2013 school
years.
         3.     Respondent has not created a policy reason for the nonrenewal of a term
contract: that a teacher has received parent or student complaints.
         4.     The administration tendered and the school board admitted into evidence
student statements. These student statements were made as a result of an investigation by
Petitioner's principal into a parental complaint.           The principal was an experienced
principal who used the investigative tool of asking open ended questions. The students
who drafted the statements at issue were not out to get Petitioner.
                                            Discussion

         Petitioner contends Respondent improperly nonrenewed his term contract because
it is based in part on the fact that complaints were made and there is not substantial
evidence to support the substance of the complaints because what the district relies upon
as evidence is objected to hearsay. Respondent denies Petitioner's claims.




I See 19 TEX. ADMIN. CODE § l57.l072(i); Bosworth v. East Central Independent School District, Docket
No. 090-R l-803 (Comm 'r Educ. 2003).



062-Rl-07-2013                                  -3-
TCNA
          The Term Contract Nonrenewal Act2 ("TCNA") was passed by the 671h
Legislature in 1981. Term Contract Nonrenewal Act, 67'h Leg., R.S., ch. 765, 1981 Tex.
Gen Laws 2847. This law fundamentally changed teacher3 contracts. Before the TCNA
many districts hired teachers and administrators on one-year contracts.                    When the
contract term expired, the district was not required to offer a contract for the new school
year. Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461, 462 (Tex. 1985). Prior to
the passage of the TCNA, school districts were not required to establish policy reasons
for ending a contractual relationship, to give teachers the reasons why ending the
contractual relationship was proposed, and to provide teachers with the opportunity for a
hearing where the administration had the burden of proof to show that the teacher's
contract should be nonrenewed. If a teacher's contract was not nonrenewed, the school
board was not only required to hire the teacher for the next school year, but also to
employ the teacher in the same professional capacity for the next school year.
Seifert
          Petitioner relies on the case of Seifert v. Lingleville Independent School District,
Docket No. 174-R1a-782 (Comm'r Educ. 1983) for the proposition that a school district
cannot rely on the fact that complaints were made as a reason for nonrenewal. The
Commissioner's Decision in Seifert, which found for the teacher, held that a "community
feeling of incompetence" was not a legitimate ground for nonrenewal.                             The
Commissioner determined that while incompetence can be a legitimate ground for
nonrenewal, a community's feelings about incompetence cannot. The Commissioner's
Decision was appealed to district court. The district court affirmed the Commissioner's
Decision.      The Third Court of Appeals overturned the district court's decision.

2
  Section I of SB 341 itself provided that "this act shall be known as "The Term Contract Nonrenewal
Act."
3
  From the beginning, the TCNA has used an expansive definition of"teacher" that includes many who are
not normally referred to as teachers.



062-R1-07-2013                                   -4-
Lingleville Indep. Sch. Dist. v. Texas Central Education Agency, No. 14,229, (Austin Jan.
9, 1985) overturned by Seifert v. Lingleville Indep. Sch. Dist., 692 S.W.2d 461, 462

(Tex. 1985).       The Supreme Court overturned the decision of the appellate court and

affirmed the Commissioner's Decision solely on the grounds that the district's policy

reasons for the nonrenewal of term contracts included "incompetence" but not a

"community feeling of incompetence."                 Seifert v. Lingleville Indep. Sch. Dist., 692
S.W.2d 461, 462 (Tex. 1985).                The Court did not reach the issue of whether a

"community feeling of incompetence" could be a ground for a nonrenewal.                              In the

present case, there is no need to go any further than the Supreme Court's holding in

Seifert as to the issue of notice 4 • Because Respondent does not list "community or
student complaints" as one of its policy reasons for nonrenewal, the nonrenewal of

Petitioner's contract cannot be affirmed simply by showing that there were community or

student complaints.        To prevail, Respondent needs to show that substantial evidence

supports at least one of the noticed policy reasons for proposed nonrenewal.

Evidence

         Petitioner contends that no evidence exists in the local record sufficient to show

that there is substantial evidence to support the nonrenewal of his contact. In particular,

Petitioner contends the statements relied upon by Respondent do not constitute evidence

because they are hearsay. The parties dispute what counts as evidence. Petitioner argues

for the application of the Texas Rules of Evidence. Respondent contends that the Texas

Rules of Evidence do not apply.




4
  It should be noted that in the case of Tarrant v. Clear Creek lndep. Sch. DisI., 238 S. W.3d 445 (Tex.
App.-Houston [I" Dist.], no pet.) the court held that "The Education Code places no limits on the reasons
for nonrenewal of a teacher's contract, but merely requires that reasons (I) not be arbitrary and capricious
and (2) be supported by substantial evidence. See TEX. EDUC. CODE ANN.§ 21.209 (Vernon 2006)."



062-Rl-07-2013                                      -5-
Original TCNA
          In determining what is to be considered as evidence in a nonrenewal heard before
a school board, the first resort is to the statue itself. In the original TCN A, the word
"evidence" appears one time, in the former section 21.207(a):


          If the teacher is aggrieved by the decision of the board of trustees, he may appeal
          to the State Commissioner of Education pursuant to Section 11.13 of this code.
          The commissioner may not substitute his judgment for that of the board of
          trustees, unless the decision below was arbitrary, capricious, unlawful, or not
          supported by substantial evidence.
                                                                             /

Term Contract Nonrenewal Act,        671h   Leg., R.S., ch. 765, 1981 Tex. Gen Laws 2847,
2848 (emphasis added)       There also is a brief provision regarding how a hearing on the
proposed nonrenewal of a contract is to be conducted: "[t]he hearing is to be conducted in
accordance with rules promulgated by the district."        !d.   The original statute itself
provides little guidance as to what is to be considered evidence. Although it may perhaps
be inferred that when a school district creates its rules on conduct for a hearing, that the
district will make some rules concerning evidence.
Seifert
          An early Commissioner's case considered what evidence was or whether a fact
stated in the record could be considered as evidence for substantial evidence purposes.
Seifert v. Lingleville Independent School District, Docket No. 174-Rla-782 (Comm'r
Educ. 1983).      In Seifert, the Commissioner held that the reference in the TCNA to
"substantial evidence" meant that the normal court rules for evidence would apply and
that the school district's policy that allowed the board to consider what it "believed to be
fair and reasonable" did not establish the standard for evidence. The Commissioner

rejected the district's evidentiary standard that was less stringent than the usual court
standard

          The Commissioner specifically held:




062-R!-07-20J.3                                -6-
       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." Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186 (Tex.
       1972).
The sentence immediately following the quoted sentence in the Lewis case was not cited

by the Commissioner in Seifert but it should be considered:


       It should quickly be added that in administrative hearings considerable discretion
       is permitted in allowing evidence to be introduced by virtue of the liberal
       exceptions to the rule.

Lewis v. Southmore Savings Association, 480 S.W.2d 180, 186 (Tex. 1972). As is so
often the case with questions concerning hearsay, the question is not whether the

proffered evidence is hearsay, but whether a hearsay exception applies. While hearsay
applies in the same manner in court cases and administrative cases, there is more
discretion allowed in the administrative cases to admit hearsay because of liberal
exceptions to the hearsay rule which apply in the administrative arena.
Liberal Hearsay Exceptions

       The liberal administrative exceptions to the hearsay rule, which were first made
by case law, have been codified in the Administrative Procedures Act:


                 The rules of evidence as applied in a nonjury civil case in a district court
       of this state shall apply to a contested case except that evidence inadmissible
       under those rules may be admitted if the evidence is:
                         (I) necessary to ascertain facts not reasonably susceptible of
       proof under those rules;
                         (2) not precluded by statute; and
                         (3) of a type on which a reasonably prudent person commonly
       relies in the conduct of the person's affairs.

TEX. Gov'T CoDE § 2001.081. This section applies to hearsay claims. Lubbock Radio

Paging Service v. Southwestern Bell, 607 S.W.2d 29, 32 n. 2 (Tex. Civ. App.-Beaumont

1980, writ refd n.r.e.) It would seem that these are the standards that apply to evidence



062-R1-07-2013                              -7-
considered by a board of trustees when the board hears the proposed nonrenewal of a
term contract, at least nnder the original TCNA, as a board hearing is an administrative
hearing. It should also be pointed out that evidentiary rulings are generally reviewed
under an abuse of discretion standard. Horizon/ CMS Health Care v. Auld, 34 S.W.3d
887, 906 (Tex. 2000). Hence, before the Commissioner the issue would be whether a
school district abused its discretion in applying the standards set out in Texas
Government Code section 2001.081.         However, since the time of the Seifert decision,
there have been changes to the TCNA and additional Commissioner's Decisions which
have addressed the subject of evidence.
         It should be noted that the Commissioner does not seem to have ever cited or
referred to the sentence in Lewis, immediately following the two sentences from Lewis
quoted in Seifert. However, if the first sentence states the applicable law, so does the
second sentence.
Gipson
         In Gipson v. Ore City Independent School District, Docket No. 178-R1-690
(Comm'r Educ. 1992), the Commissioner held:


         While the Texas Rules of Evidence do not apply to local hearings, they do apply
         to the record on appeal.
As shown above, this is an incomplete statement of the law. Hearsay applies in the same
manner before the Commissioner as it does before a court, but before the Commissioner
additional liberal exceptions apply. In Gipson, there is no analysis of the liberal hearsay
exceptions in the administrative context. However, the Commissioner did reject the
testimony of a teacher who repeated what two students told her as hearsay. It should also
be noted that at the time Gipson was written, there was no Texas Education Code section
21.301(c) which in most cases, limits the Commissioner's review to issues raised in the
local record.




062-Rl-07-2013                              -8-
    Dunlap5

            In Dunlap v. Breckenridge Independent School District, Docket No. 334-RI-692

    (Comm'r Educ. 1995), the Commissioner relies on Gipson for the proposition that the

Texas Rules of Evidence apply before the Commissioner. Again, there is no discussion

of the liberal exceptions to hearsay that apply before administrative bodies.                         The

Commissioner found that several types of hearsay evidence could not be considered

including a written student note.



           The most significant statutory change to teacher contracts after the adoption of the

TCNA, was SB I in 1995, which was at the time the largest substantive bill in Texas

history. Ellen Williams, Education, 49 SMU L. Rev. 901,903 (1996). SB I significantly

changed how the proposed nonrenewal of a term contract was to be handled. Under SB I,

a school board has a choice of whether to hear a proposed nonrenewal or whether to

allow an Independent Hearing Examiner to hear a proposed nonrenewal. If the school

district decides to hear a proposed nonrenewal, the hearing, just as in the past, is to be

"conducted in accordance with rules adopted by the board." However, SB I adds several

specific requirements for the hearing which were not found in previous law. These new

standards are:


           (c) At the hearing, the teacher may:
                            (I) be represented by a representative of the teacher's choice;
                            (2) hear the evidence supporting the reason for nonrenewal;
                            (3) cross-examine adverse witnesses; and
                            (4) present evidence.




5
    While Dunlap was decided in 1995, the same year that SB I passed, the case was filed June 1992.



062-Rl-07-2013                                       -9-
TEX. Eouc. CODE§ 21.207. These standards for the hearing are in marked contrast to the

standards for a hearing to be held before an Independent Hearing Examiner which

include:
                 Sec. 21.255 HEARINGS BEFORE HEARING EXAMINER. (a) The
       hearing examiner may issue subpoenas at the request of either party for the
       attendance of witnesses and the production of documents at the hearing and may
        administer oaths, rule on motions and the admissibility of evidence, maintain
       decorum by closing the hearing or taking other appropriate action, schedule and
       recess the proceedings, and make any other orders as provided by rules adopted
       by the commissioner. The hearing examiner may issue a subpoena for the
       attendance of a person who is not an employee of the district only if the party
       requesting the issuance of the subpoena shows good cause for the subpoena. The
       hearing must be held within the geographical boundaries of the school district or
       at the regional education service center that serves the district.
                 (b) A hearing examiner may allow either party to take one or more
       depositions or to use other means of discovery before the hearing. The hearing
       examiner, at the request of either party, may issue subpoenas for the attendance of
       witnesses and the production of documents at the deposition. The hearing
       examiner may issue a subpoena for the deposition of any person who is not an
       employee of the district only if the party requesting the issuance of the subpoena
       shows good cause for the subpoena. The deposition must be held within the
       geographical boundaries of the school district or at the regional education service
       center that serves the district.
                 (c) A procedure specified in this section may be changed or eliminated
       by written agreement of the teacher and the school district after the teacher
       receives the written notice of the proposed action.
                 (d) If the hearing examiner is unable to continue presiding over a case at
       any time before issuing a recommendation or decision, the parties shall request
       the assignment of another hearing examiner under Section 2 I .254 who, after a
       review of the record, shall perform any remaining functions without the necessity
       of repeating any previous proceedings.
                (e) The school district shall bear the cost of the services of the hearing
       examiner and certified shorthand reporter at the hearing and the production of any
       original hearing transcript. Each party shall bear its respective costs, including
       the cost of discovery, if any, and attorney's fees.

                Sec. 21.256. CONDUCT OF HEARING. (a) A hearing under this
       subchapter must be private unless the teacher requests in writing that the hearing
       be public, except that a hearing examiner may close a hearing if necessary to
       maintain decorum.
                (b) The hearing is not subject to Chapter 200 I, Government Code.
                (c) At the hearing, a teacher has the right to:
                        (I) be represented by a representative of the teacher's choice;
                        (2) hear the evidence on which the charges are based;



062-R I -07-2013                           -I 0-
                          (3) cross-examine each adverse witness; and
                          (4) present evidence.
                 (d) The Texas Rules of Civil Evidence apply at the hearing A certified
       shorthand reporter shall record the hearing
                 (e) The hearing shall be conducted in the same manner as a trial without
       a jury in a district court of this state. The hearing examiner's findings of fact and
       conclusions oflaw shall be presumed to be based only on admissible evidence.
                 (f) To protect the privacy of a witness who is a child, the hearing
       examiner may:
                         (I) close the hearing to receive the testimony of the witness; or
                         (2) order that the testimony or a statement of the witness be
       presented using the procedures prescribed by Article 38.071, Code of Criminal
       Procedure.
                (g) An evaluation or appraisal of the teacher is presumed to be
       admissible at the hearing.
                (h) At the hearing, the school district has the burden of proof by a
       preponderance of the evidence.

(Emphasis added). In a hearing conducted by an Independent Hearing Examiner the full

Texas Rules of Evidence apply, not just the hearsay rules. The Legislature did not say

that additional liberal exceptions to the hearsay rule apply when an Independent Hearing

Examiner hears a proposed nonrenewal. Hence, only the Texas Rules of Evidence apply

when an Independent Hearing Examiner hears a proposed nonrenewal.

       The Legislature's decision to specifically require that the Texas Rules of

Evidence always apply to a hearing before an Independent Hearing Examiner and not to

require the application of the Texas Rules of Evidence when a school board hears the

proposed nonrenewal of a contract indicates the Texas Rules of Evidence do not solely

apply when a school board hears a proposed nonrenewal. By not specifying that the

Texas Rules of Evidence solely apply when a proposed nonrenewal is heard by a school

district, it would seem that the normal rules for administrative bodies concerning hearsay

apply, that is, the standards set out in Lewis and Texas Government Code section

2001.081 apply when a school district hears a proposed nonrenewal.

       Further, it should be noted that under SB I, in an appeal to the Commissioner of a

nonrenewal, the parties are limited to the issues raised in the local record. TEX. Eouc.




062-Rl-07-2013                             -11-
CODE § 21.30 I (c). If a hearsay claim is not raised at the local record, it cannot be raised
before the Commissioner.      Whitaker v. Moses, 40 S.W.3d 176, 178-179 (Tex. App.-

Texarkana 2001, no pet.). Before a school board hearing the proposed nonrenewal of a
contract, a hearsay objection needs to be made or it is waived.
Grounds

       Another significant change to nonrenewal law was made by SB I. This change
concerns the type of interest a teacher has in a term contract after the contract's term has
expired. This change should also be considered. In Grounds v. Tolar Indep. Sch. Dist.,
856 S. W.2d 417, 420 (Tex. 1993), which was decided two years before SB I was passed,
the Texas Supreme Court held that a teacher who held a term contract had a property
interest beyond that contract's term. This was a significant holding because if one has a
property interest, one is entitled to due process. The Commissioner had held long prior to
Grounds that a term contract teacher was entitled to due process during a nonrenewal

hearing. Salinas v. Ben Bolt-Palito Blanco Indep. Sch. Dist., No. 202-Rla-882 (Comm'r
Educ. 1983).
       The recognition of due process rights of term contract teachers when faced with a
proposed nonrenewal no doubt influenced the Commissioner's determinations as what
could be considered evidence for substantial evidence purposes.         A statute is to be
interpreted so as to be constitutional. TEX. Gov'T CoDE§ 311.021(1). If due process
requires that objected to hearsay cannot be considered, a statute that implicates due
process should not be interpreted so as to allow hearsay testimony.
No Property Interest

       Soon after Grounds was issued, the Legislature made a significant change
regarding whether a term contract teacher had a property interest in a term contract. As
part ofSB 1, the Legislature amended the TCNA to provide:
       A teacher does not have a property interest in a term contract beyond its term.




062-RI-07-2013                             -12-
TEX. EDUC. CODE § 21.204( e). A number of cases have held that this subsection means

what it says. Stratton v. Austin Jndep. Sch. Dist., 8 S.W.3d 26, 29-30 (Tex. App.-Austin

1999, no pet.); Whitaker v. Moses, 40 S.W.3d 176, 179 (Tex. App.-Texarkana 2001, no

pet.); Peters v. Nelson, 2002 Tex. App. LEXIS 2539, 10 (Tex. App.-Dallas 2002, no

pet.); Nairn v. Killeen Jndep. Sch. Dist., 366 S.WJd 229, 245 (Tex. App.-EI Paso 2012,

no pet.); Ray v. Houston Jndep. Sch. Dist., 438 Fed. Appx. 332, 335 (5 1h Cir. 2011). The

impact of this change can be seen in the first case to consider the issue:


       In a 1993 case, the Texas Supreme Court held that the TCNA requires pre-
       established reasons for the nonrenewal of a teaching contract and that this
       substantive limit on the State's discretion is an essential characteristic of a
       property interest warranting constitutional protection. See Grounds v. Tolar Indep.
       Sch. Dist., 856 S.W.2d 417,418 (Tex. 1993). nm+In 1995, however, the Texas
       legislature enacted section 21.204(e) of the Education Code, stating specifically
       that the TCNA does not provide a property interest in a contract beyond its term.
       See Tex. Educ. Code Ann. § 21.204(e) (West 1996). The language in section
       21.204(e) supersedes the holding in Grounds. Stratton has no property interest
       under Texas law.

       Stratton complains that by setting a time limitation without first conferring with
       the parties and by deducting cross-examination from that time, the Board denied
       her the process she was due. See AISD Board Policy DDA (Local), § XV(H).
          3
       HN "+An agency's failure to follow its own procedural rules governing
       employment will not create a property interest which otherwise does not exist. See
       Alford, 738 S.W.2d at 316. Under section 21.204(e) of the Education Code,
       Stratton has no protected property interest in her term contract. See Tex. Educ.
       Code Ann. § 21.204( e). Because Stratton has no protected property interest under
       state law and because an agency's failure to follow local policy vests no property
       interest, no right to due process exists. See Moore, 871 F.2d at 548. Nevertheless,
       a one-hour limitation on presenting evidence to preserve one's livelihood offends
       traditional notions of fairness. We sympathize with her complaint and disapprove
       of the Board limiting the parties' presentation so severely that the affected teacher
       was not permitted to present her side for the Board's consideration. 1 Under these
       circumstances, however, we overrule her first issue.
Stratton, 29-30. Here the fact that the district so limited the teacher's time to present her

case that she was not able to complete cross-examination was found to offend traditional

notions of fairness, but was not sufficient to overturn the board's decision to nonrenew

the teacher's contract. It would seem that the lack of property interest may also limit the



062-RI-07-2013                              -13-
extent that a school district would be required to apply the hearsay rule and might expand
the applicable hearsay exceptions. However, this issue need not be decided in the present
case, as applying the hearsay rule and the liberal exceptions for administrative cases
resolves the present case.
Post SB 1 Decisions
         Since SB 1 was passed, some Commissioner's Decisions have addressed hearsay
issues or whether the Texas Rules of Evidence apply. In no case cited by either party, did
the Commissioner address the issues of whether the Texas Rules of Evidence solely
applied, the liberal exceptions to hearsay allowed in administrative proceedings applied;
or whether some other rules applied.
Anderson
         Petitioner notes that the Commissioner wrote in Anderson v. Jacksonville
Independent School District, Docket No. 142-Rl-397 (Comm'r Educ. 1997) that
"[p)roperly objected to hearsay cannot support a board's decision." The Commissioner
made no reference to either the Texas Rules of Evidence or the liberal exceptions to the
hearsay rules that apply to administrative decisions.        Further, in Anderson after the
teacher made hearsay objections at the local level, there were rulings on the objections.
Both parties assumed hearsay applied and neither contended that the liberal exceptions to
hearsay in administrative matters should be considered. The Commissioner determined
that certain rulings on hearsay objections were incorrect.
Carnal
         In Carnal v. North East Independent School District, Docket No. 066-Rl-605
(Comm'r Educ. 2005), the parties had a dispute as to whether a particular hearsay
exception found in the Texas Rules of Evidence applied and whether a document setting
out a chronology of events was allowed. Neither party raised an issue as to whether the
Texas Rules of Evidence solely governed the hearsay issue or whether the liberal
exceptions for administrative hearings applied.


062-RI-07-2013                             -14-
Dews and Green

        In Dews v. Tyler Independent School District, Docket No. 053-R1-0508 (Comm'r

Educ. 2008), the main evidentiary issue had to do with the procedures for admitting

evidence. The Commissioner held:


        This nonrenewal was heard exclusively by Respondent's board of trustees.
        Respondent did not choose to have the case heard by a certified hearing examiner
        under Texas Education Code section 21.207(b ). If the case had been heard by a
        certified hearing examiner, the Texas Rules of Evidence would apply. Tex. Educ.
        Code § 21.256( d). In fact, a hearing before a certified hearing examiner is
        conducted as a district court trial without a jury. Tex. Educ. Code § 21.256(e).
        Under such rules, there are clear standards concerning the admission of evidence.
        Evidence needs to be formally admitted under those rules. However, since this
        case was not heard by a certified hearing examiner. These standards do not apply.
        The question then becomes "how is it determined that a document was admitted
        or not?" In a nonrenewal not heard by a certified hearing examiner, whether
        evidence is admitted will be determined by district policy and practice.
The Texas Rules of Evidence do not directly apply when a board hears a proposed
nonrenewal. Green v. Brazosport Independent School District, Docket No. 083-R1-0512
(Comm'r Educ. 2012) also holds that the Texas Rules of Evidence do not directly apply
to proposed nonrenewal hearings heard by school boards. While the Texas Rules of

Evidence do not directly apply to proposed nonrenewal hearings heard by boards of
trustees, this does not mean that the hearsay rules found in the Texas Rules of Evidence

have no applicability as to the issue of hearsay.
       In a footnote in Dews, the Commissioner stated:


       It would be wise for a school district to adopt as a policy that specified what
       evidentiary rules apply when a proposed nonrenewal is heard by the board.
This remains good advice as a proposed nonrenewal hearing is to "be conducted in

accordance with rules adopted by the board." TEX. Eouc. CODE§ 21.207(b ).




062-R1-07-2013                              -15-
Hearsay in the Present Case
        The issue of what hearsay exceptions apply is dispositive in the present case. The
issues in dispute involve what Petitioner did and said in class. The only people who
observed what was going on in class were Petitioner and his students. Petitioner testified
before the school board.       Student statements, which were taken as part of an
investigation, were offered into evidence over Petitioner's hearsay objections.        No
student testified.   If Petitioner is to be believed his actions would not warrant the
nonrenewal of this contract.    If the students are be believed, Petitioner's actions do
warrant the nonrenewal of his contract. Petitioner does not contend that if the students
statements are properly in evidence that there is not substantial evidence to support the
nonrenewal of his contract. If Petitioner publicly made fun of students' weight and
appearance and otherwise disparaged students and made statements which a reasonable
person would know would make children feel uncomfortable, Respondent had sufficient
reason to nonrenew his contract. Petitioner denies that some of the incidents alleged by
the students occurred at all and puts the incidents that he admits occurred in a very
different context than do the students. If the student statements can be considered for
substantial evidence purposes, the nonrenewal of Petitioner's contract should be affirmed
because several policy reasons for nonrenewal would have been met.
Standards
       As indicated above, if one does not consider the change made by SB I in taking
away a term contract teacher's property interest in the teacher's contract after the
expiration of the contract, the standard to be applied is whether Respondent's board
abused its discretion in not excluding the student statements. As there is no dispute that

the statements constitute hearsay under the Texas Rules of Evidence, the issue is whether
the liberal exceptions set out in Texas Government Code section 2001.081 apply in the
present case. If it were found that those liberal exceptions did not apply to the student




062-RI-07-2013                            -16-
statements, the Commissioner would have to consider whether the lack of a property
interest in the nonrenewal context changes the standards concerning hearsay exceptions.
Necessary to Ascertain Facts
        The first standard is whether the proffered evidence is "necessary to ascertain
facts not reasonably susceptible of proof under" the rules used by a Texas district court in
a nonjury trial. TEX. Gov'T CODE§ 2001.081(1). The student statements meet this first
standard. In a case heard by an Independent Hearing Examiner either party can subpoena
witnesses even student witnesses. TEX. EDUC. CODE § 21.255. 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 of proof
using the hearsay exceptions as applied by courts. The student statements are necessary
to ascertain facts not reasonably susceptible for proof.
Not Precluded by Statute
       The second standard is whether the admission of the proffered evidence is "not
precluded by statute."     TEX. Gov'T CODE § 2001.081(2).       No statute precludes the
admission of the student statements.
Of the Type

         The third standard is whether the evidence is of the "type on which a reasonably
prudent person commonly relies in the conduct of the person's affairs." TEX. Gov'T CODE

§ 2001.081(3). In the present case, the student statements were taken as part of an
investigation by an experienced principal. The principal asked the students open ended
questions.    There is no evidence that the students conspired to get the teacher.       A
reasonably pmdent person would rely on such evidence in the conduct of a person's
affairs. Respondent's decision to admit the documents in question was not an abuse of


062-Rl-07-2013                              -17-
discretion. As all the requirements for the admission of the student statements are met, it

is concluded that there is substantial evidence to support the nonrenewal of Petitioner's

contract. Additionally, there is no need to consider the issue of whether a lesser standard

for hearsay exceptions is appropriate because Petitioner does not have a property interest

in his term contract after the expiration of the contract's term.

Conclusion

        Respondent's decision to nonrenew Petitioner's contract should be affirmed.

While the nonrenewal of Petitioner's contract cannot be supported merely by the fact that

parent and student complaints were received there is substantial evidence that Petitioner's

statements warrant the nonrenewal of his contract.           Respondent did not abuse its

discretion when it allowed in the student statements as they are covered by the liberal

exceptions to the hearsay rule allowed in administrative proceedings.

                                    Conclusions of Law

       After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact, in my capacity as the Commissioner of Education, I make the following

Conclusions of Law:

       I.      The Commissioner has jurisdiction over this case under Texas Education

Code section 21.301.

       2.      The nonrenewal of teacher's term contract is to be based on the occurrence

of a pre-established policy reason. TEX. Eouc. CODE § 21.303(b ).

       3.      Because Respondent does not have a policy reason to nonrenew a term

contract: that the district has received parent or student complaints, Respondent could not

nonrenew Petitioner's contract solely because it has received parent and student

complaints about Petitioner.    The fact that a complaint was received is not by itself

sufficient grounds to nonrenew Petitioner's contract. TEX. Eouc. CODE§ 21.303(b).

       4.      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


062-Rl-07-2013                              -18-
goes to the weight of the evidence. It should quickly be added that in administrative
hearings considerable discretion is permitted in allowing evidence to be introduced by
virtue of the liberal exceptions to the rule.
        5.       The liberal exceptions to the hearsay rule in the administrative context
have been codified at Texas Government Code section 2001.081.
       6.        In the context of the a hearing on the proposed nonrenewal of a term
contract which is heard by a school board hearsay evidence may be admitted if it meets
standards set out in Texas Goverrunent Code section 2001.081. Whether these standards
should be lessened because a teacher does not have a property interest in a term contract
beyond the contract's need not be considered in the present case.
       7.        A school board's ruling on a hearsay objection     IS   reviewed under the
abuse of discretion standard.
       8.        Respondent did not abuse its discretion when it entered into evidence the
student statements referenced in Finding of Fact No. 4.
       9.        There is substantial evidence to support the nonrenewal of Petitioner's
term contract.
       10.       The decision to nonrenew Petitioner's term contract is not arbitrary,
capricious, or unlawful.
       11.       The Petition for Review should be denied.




062-R1-07-2013                                  -19-
                                           ORDER

         After due consideration of the record, matters officially noticed, and the foregoing

Findings of Fact and Conclusions of Law, in my capacity as the Commissioner of Education, it is

hereby

         ORDERED that the Petitioner's appeal, be, and is hereby Denied.



         SIGNED AND ISSUED this        r5?J ~ay of August, 2013.


                                                    WILLIAMS
                                       :::OJ\IIJ'v!IS~)IONER
                                                         OF EDUCATION




062-Rl-07-2013                              -20-
APPENDIXB
                                                                    Ftled in The Drstnct Court
                                                                     of Travis County, Texas

                                Cause No. D-1 -GN-13-003654
                                                                         s                     NYL--
                                                                    t          L' JL{   p M
JORGE VAZQUEZ,                                §                 IN THECDIStRICT COURT
  Plaintiff,                                  §
                                              §
v.                                            §               OF TRAVIS COUNTY, TEXAS
                                              §
MICHAEL WILLIAMS STATE                        §
COMMISSIONER OF EDUCATION,                    §
ETAL                                          §
  Defendant                                   §                 419TH JUDICIAL DISTRICT

                                   FINAL JUDGMENT

The Decision of the Commissioner is reversed.

       In his Decision, the Commissioner framed the central question to be decided in this
case as follows:

       In the local record there are written student statements that constitute
       hearsay that were admitted over a hearsay objection. The issue is whether a
       hearsay exception applies to the documents.

Commissioner's Order, page 1.

The Commissioner's answer to this central question is as follows:

       It is determined that under the liberal exceptions to the hearsay rule for
       administrative proceedings that the written student statements at issue were
       properly admitted.

Commissioner's Order, page 2.

       The Commissioner relies on Texas Government Code section 2001.081 to find the
"liberal hearsay exceptions" he a·p plies to this case. The parties dispute whether Texas
Government Code Section 2001.081 even applies to school district non-renewal hearings,
but that question need not be answered because, even if it does, it provides no support for
the Commissioner's decision on the record of this non-renewal hearing. All three parts of
section 2001.081 must be met for its exception to apply. The salient part is that the hearsay
evidence in question is "necessary to ascertain facts not reasonably susceptible of proof..."
The Commissioner's only analysis of this prong is merely an unsupported assumption that
"many parents would probably not choose to subject their children to cross examination ... "
(Commissioner's Order, page 17), but the defendants have not cited the court to any
evidentiary support in this record for that assumption. To the contrary, the only evidence
addressing this assumption cuts against it:

            Q.    Did you have any concerns, [Principal] Villareal, about - and I
       know we don't have subpoena powers in a situation like this, but did you

                                   D-1-GN-13-003654                                     1 of3
      have any concerns about bringing these students in to reiterate what has
      been stated here today?
             A.      No.
              Q.     How - what do you think that process would be like for them,
      as far as putting them on the witness stand and having them having to repeat
      this? Did you have any concerns that that might be difficult for them?
              A.    I believe not

Hearing Transcript, 76/23-77/8. Accordingly, Section 2001.081, even if applicable to this
case, provides no support for the "liberal hearsay exceptions" relied upon by the
Commissioner.

       The Commissioner has taken the firm position in his order that there is no
substantial evidence to support the decision of the Board of Trustees if the hearsay
statements of the students cannot be considered for substantial evidence purposes: "The
issue of what hearsay exceptions apply is dispositive in the present case.'; Commissioner's
Order, page 16. This Court has concluded that the Commissioner erred in applying Section
2001.081 in this case to allow the students' statements to be considered for substantial
evidence review.

       The Commissioner's Order poses one last question about hearsay exceptions
without answering it The Commissioner questions whether "the lack of a property interest
[the parties dispute the existence of a property interest, but the Commissioner concludes
that no property interest exists]... in the non-renewal context changes the standards
concerning hearsay exceptions." Commissioner's Order, pages 16-17. But whether or not a
property right exists, Texas Education Code Section 21.207(c) provides a statutory right for
the teacher to "cross examine adverse witnesses .... " Broadly permitting hearsay would
render that statutory right essentially meaningless, especially where, as in this case, the
only substantial evidence, as found by the Commissioner, is hearsay statements by
"adverse witnesses" who do not appear at the hearing to be cross examined.

       This Court is bothered by the record in this case, and suspects that the
Commissioner was bothered in the same way. It is truly unfortunate that the school district
chose to conduct this hearing without calling a single witness to provide non-hearsay
testimony about the salient facts, and without providing an adequate explanation or excuse
for their failure to do so. In making this choice, the school district left the Commissioner,
and this Court, without substantial evidence to support its decision. Accordingly, the Court
must now reverse.

IT IS THEREFORE ORDERED THAT
       The Decision of the Commissioner of Education is HEREBY REVERSED, and this case
is REMANDED to the Commissioner of Education to enter an order REVERSING the action of
Los Fresnos Independent School District nonrenewing the employment contract of Jorge
Vazquez at the end of the 2012-13 school year and ORDERING the District to comply with
Texas Education Code Section 21.304(e) and/or (f).
                                    D-1-GN-13-003654                                 2 of3
      All costs of court are taxed against Defendants.

     This Order fully disposes of all claims and all parties and constitutes a FINAL and
APPEALABLE JUDGMENT.



SIGNED AND ENTERED on the 3rd day of September, 2014.




                                                                 SCOTT H. JENKINS
                                                               G




                                   D-1-GN-13-003654                             3 of3
APPENDIXC
§ 21.207. Hearing Under Term Contract, TX EDUC § 21.207




  Vernon's Texas Statutes and Codes Annotated
    Education Code (Refs & Annos)
      Title 2. Public Education (Refs & Annos)
        Subtitle D. Educators and School District Employees and Volunteers
           Chapter 21. Educators (Refs & Annos)
              Subchapter E. Term Contracts

                                              V.T.C.A., Education Code § 21.207

                                           § 21.207. Hearing Under Term Contract

                                                 Effective: September 28, 2011
                                                          Currentness


(a) If the teacher desires a hearing after receiving notice of the proposed nonrenewal, the teacher shall notify the board of trustees
in writing not later than the 15th day after the date the teacher receives hand delivery of the notice of the proposed action, or if
the notice is mailed by prepaid certified mail or delivered by express delivery service, not later than the 15th day after the date
the notice is delivered to the teacher's address of record with the district. The board shall provide for a hearing to be held not
later than the 15th day after the date the board receives the request for a hearing unless the parties agree in writing to a different
date. The hearing must be closed unless the teacher requests an open hearing.


(b) The hearing must be conducted in accordance with rules adopted by the board. The board may use the process established
under Subchapter F. 1


(b-1) Notwithstanding any other provision of this code, this subsection applies only to a school district with an enrollment of
at least 5,000 students. The board of trustees may designate an attorney licensed to practice law in this state to hold the hearing
on behalf of the board, to create a hearing record for the board's consideration and action, and to recommend an action to the
board. The attorney serving as the board's designee may not be employed by a school district and neither the designee nor a
law firm with which the designee is associated may be serving as an agent or representative of a school district, of a teacher in
a dispute between a district and a teacher, or of an organization of school employees, school administrators, or school boards
of trustees. Not later than the 15th day after the completion of the hearing under this subsection, the board's designee shall
provide to the board a record of the hearing and the designee's recommendation of whether the contract should be renewed or
not renewed. The board shall consider the record of the hearing and the designee's recommendation at the first board meeting
for which notice can be posted in compliance with Chapter 551, Government Code, following the receipt of the record and
recommendation from the board's designee, unless the parties agree in writing to a different date. At the meeting, the board
shall consider the hearing record and the designee's recommendation and allow each party to present an oral argument to the
board. The board by written policy may limit the amount of time for oral argument. The policy must provide equal time for each
party. The board may obtain advice concerning legal matters from an attorney who has not been involved in the proceedings.
The board may accept, reject, or modify the designee's recommendation. The board shall notify the teacher in writing of the
board's decision not later than the 15th day after the date of the meeting.


(c) At the hearing before the board or the board's designee, the teacher may:


  (1) be represented by a representative of the teacher's choice;




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 21.207. Hearing Under Term Contract, TX EDUC § 21.207




  (2) hear the evidence supporting the reason for nonrenewal;


  (3) cross-examine adverse witnesses; and


  (4) present evidence.


Credits
Added by Acts 1995, 74th Leg., ch. 260, § 1, eff. May 30, 1995. Amended by Acts 2011, 82nd Leg., 1st C.S., ch. 8 (S.B. 8),
§ 10, eff. Sept. 28, 2011.



Notes of Decisions (4)



Footnotes
1      V.T.C.A., Education Code § 21.251 et seq.
V. T. C. A., Education Code § 21.207, TX EDUC § 21.207
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
