                                                                               ACCEPTED
                                                                          03-14-00629-CV
                                                                                  4840513
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                    4/10/2015 10:57:28 AM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK
                   No. 03-14-00629-CV

                                                        RECEIVED IN
                                                  3rd COURT OF APPEALS
                 IN THE COURT OF APPEALS               AUSTIN, TEXAS
              FOR THE THIRD JUDICIAL DISTRICT     4/10/2015 10:57:28 AM
                     AT AUSTIN, TEXAS                 JEFFREY D. KYLE
                                                           Clerk


LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT AND
MICHAEL L. WILLIAMS, THE STATE COMMISSIONER OF EDUCATION,
                        Appellants,

                            v.

                     JORGE VAZQUEZ,
                        Appellee.


             AMICUS CURIAE BRIEF OF THE
      TEXAS AMERICAN FEDERATION OF TEACHERS



                                 DEATS DURST & OWEN, P.L.L.C.
                                 1204 San Antonio Street, Suite 203
                                 Austin, Texas 78701
                                 (512) 474-6200
                                 (512) 474-7896 (FAX)
                                 Martha P. Owen
                                 State Bar No. 15369800
                                 mowen@ddollaw.com
                                 Matt Bachop
                                 State Bar No. 24055127
                                 mbachop@ddollaw.com

                                 COUNSEL FOR AMICUS CURIAE TEXAS
                                 AMERICAN FEDERATION OF TEACHERS
                                           TABLE OF CONTENTS

Table of Contents ....................................................................................................... i
Index of Authorities .................................................................................................. ii
Statement of Interest of Amicus Curiae .....................................................................1
Issue Presented ...........................................................................................................2
Summary of Argument ..............................................................................................2
Argument & Authorities ............................................................................................2
I. Hearsay cannot be admitted in a non-renewal hearing unless an exception
applies. .......................................................................................................................3
II. There is no evidence that any possible hearsay exception was met in this case.4
   A.    A brief word about which hearsay exceptions apply to non-renewal
   hearings. ..................................................................................................................4
   B.     Even if the Court accepts the Commissioner’s argument about which
   exceptions apply, no evidence was presented to support the argument that the
   written statements in this case met any possible exception. ..................................6
      1. The Commissioner’s arguments...................................................................7
      2. The District’s arguments. .............................................................................9
   C.        This case does not raise the difficult issues. ..............................................10
Conclusion & Prayer ................................................................................................11
Certificate of Compliance ........................................................................................12
Certificate of Service ...............................................................................................13




                                                                i
                                      INDEX OF AUTHORITIES


Cases
Crawford v. Washington, 541 U.S. 36 (2004) ...........................................................4

Lewis v. Southmore Sav. Ass’n, 480 S.W.2d 180 (Tex. 1972). .................... 3, 4, 5, 6

US v. McCormick, 54 F. 3d 214, 221 (5th Cir. 1995)................................................4

Statutes
TEX. EDUC. CODE § 21.207 ....................................................................................4, 9

TEX. GOV’T CODE § 2001.081..................................................................... 5, 6, 7, 11

Rules
TEX. R. EVID. 703 .......................................................................................................5

TEX. R. EVID. 705 .......................................................................................................5

TEX. R. EVID. 803 .......................................................................................................5




                                                            ii
             STATEMENT OF INTEREST OF AMICUS CURIAE

      The Texas American Federation of Teachers (“Texas AFT”) is a statewide

organization representing teachers, paraprofessionals, and other public school

employees working in school districts across Texas. Texas AFT has over 65,000

members. It is affiliated with the American Federation of Teachers, a national

organization with over 1.6 million members.          Texas AFT is dedicated to

advocating for the economic, social, and professional interests of its members. It

strives to protect and expand the legal rights of public school employees in the

Texas. Texas AFT advocates quality education for students, and dignity for those

who provide it.

      This case presents issues of direct concern and consequence to the members

of Texas AFT. The issue in this case—whether a teacher's contract can be non-

renewed solely on the basis of hearsay statements, without any showing that the

school district even asked the witnesses to testify live, much less a showing that

obtaining that live testimony would be difficult or impossible—is of profound

importance to Texas AFT’s members.

      Texas AFT submits this amicus brief in support of the district court’s

September 3, 2014 judgment reversing the decision of the Commissioner of

Education. The district court correctly concluded that there is not a shred of record

evidence supporting the Commissioner's ruling that the hearsay statements that


                                         1
were the sole basis for the non-renewal of Mr. Vazquez’s contract were “necessary

to ascertain facts not reasonably susceptible of proof” by live testimony.

                               ISSUE PRESENTED

      Can hearsay statements form the sole basis for non-renewal of a
      teacher’s term contract in the absence of any evidence indicating the
      witnesses were not reasonably available to provide live testimony?

                          SUMMARY OF ARGUMENT

      The district court’s narrow, fact-specific ruling in this case was that

regardless of the evidentiary rules that apply to a non-renewal hearing, the only

basis for the non-renewal of Mr. Vazquez’s contract was hearsay that did not come

close to falling within any possible exception. The evidentiary record in this case

requires affirmance of that ruling.

                        ARGUMENT & AUTHORITIES

      The Court need not decide many of the weighty issues raised by the parties

and by the Texas Association of School Boards in the briefing. The Court does not

need to rule on what evidentiary rules apply to teacher non-renewal hearings or

whether students’ written statements can ever be properly admitted in such

hearings. Nor does the Court have to determine how to deal with students who are

unable to testify, who do not want to testify, whose parents do not want them to

testify, or who might be harmed by testifying.




                                          2
      The only issue the Court needs to decide is whether a non-renewal decision

can stand when it is supported solely by hearsay student statements, when the

record contains no indication that the students were unable or unwilling to testify

or that the students' parents expressed concerns about their testifying, and when

there is testimony from the school principal that there was no concern about the

potential of psychological trauma in connection with possible student testimony.

For the reasons that follow, the trial court correctly ruled that such a decision must

be reversed.

I.    Hearsay cannot be admitted in a non-renewal hearing unless an
      exception applies.

      There can be no serious argument that hearsay can be admitted without

restriction in a non-renewal hearing. Though the school district in this case takes

that position (ISD’s Brief at 40–51), the Commissioner does not support it, and the

relevant case law and statute do not either. As the Commissioner acknowledges,

even before there were “Texas Rules of Evidence,” the Texas Supreme Court made

clear that “[i]n 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 Sav. Ass’n,

480 S.W.2d 180, 186 (Tex. 1972).

      This prohibition on the introduction of hearsay is confirmed in the Education

Code, which provides that at a non-renewal hearing, a teacher has the right to
                                          3
“cross-examine adverse witnesses.” TEX. EDUC. CODE § 21.207(c)(3). The ISD’s

assertion that this right has nothing to do with the introduction of hearsay (ISD’s

Brief at 54–57) is disingenuous and is not supported by the Commissioner. Courts

have repeatedly held that the right to cross-examine adverse witnesses does restrict

the admission of hearsay. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004)

(holding that the Sixth Amendment right to cross-examine adverse witnesses

restricts the admission of hearsay); US v. McCormick, 54 F. 3d 214, 221 (5th Cir.

1995) (holding that the Fifth Amendment right to cross-examine adverse witnesses

restricts the admission of hearsay).

      It is undisputed that the student statements at issue in this case are hearsay,

and thus they could be properly considered only if they fall within an exception to

the rule against admission of hearsay.

II.   There is no evidence that any possible hearsay exception was met in this
      case.

       A.    A brief word about which hearsay exceptions apply to non-renewal
             hearings.

      As a preliminary matter, the ISD and the Commissioner make far too much

out of the Texas Supreme Court’s reference to “the liberal exceptions to the rule

[against hearsay]” that apply in administrative hearings. Lewis v. Southmore Sav.

Ass’n, 480 S.W.2d 180, 186 (Tex. 1972). They conveniently ignore the fact that

the Court is describing the exceptions that exist under law and not creating a new,


                                         4
broad, open-ended category for hearsay exceptions in administrative cases. The

examples of those “liberal exceptions” that the Court gives were all established in

the Texas common law of evidence at the time of the decision, and have now been

codified in the Texas Rules of Evidence. Id. at 186–87 (discussing the hearsay

exception for market reports, which is now codified at TEX. R. EVID. 803(17), and

the hearsay exception for information reasonably relied on by an expert, which is

now codified at TEX. R. EVID. 703, 705(a)). Accordingly, as the Court held, the

“liberal exceptions” allowing the admission of hearsay in administrative hearings

are the ones that apply in court. Id.

      This rule has been modified by statute for contested cases in front of state

agencies under the Administrative Procedure Act (“APA”). TEX. GOV’T CODE

§ 2001.081. Section 2001.081 provides that for contested cases under the APA,

“evidence inadmissible under [the Texas Rules of Evidence] may be admitted if

the evidence” meets three criteria set out in the statute.       Id.   Although the

Commissioner concedes that “the APA does not directly apply to nonrenewal

hearings” (Commissioner’s Brief at 21), he nonetheless urges that section

2001.081’s standards should be applied to non-renewal hearings because they

represent a codification of the “liberal exceptions” to the rule against hearsay that

the Supreme Court referred to in Lewis v. Southmore Savings Association.

(Commissioner’s Brief at 21.)


                                         5
      This argument defies logic. The Lewis Court ruled that the only hearsay

exceptions that apply in administrative hearings are those that apply in court. 480

S.W.2d at 186. Section 2001.081 explicitly adds exceptions for certain hearings—

not including non-renewal hearings in front of school boards—that are not

available in court. TEX. GOV’T CODE § 2001.081. As such, section 2001.081 is a

modification of Lewis’s holding, not a codification. Accordingly, there is no basis

to apply its standards to a non-renewal hearing. Indeed, neither the Commissioner

nor the District has identified a single other instance in which section 2001.081 has

been applied by the Commissioner in a non-renewal case. Instead, undercutting

his own reasoning, the Commissioner cites many of his own non-renewal decisions

in which hearsay was excluded when none of the exceptions in the Texas Rules of

Evidence was met. (Commissioner’s Brief at 29.)

      B.     Even if the Court accepts the Commissioner’s argument about
             which exceptions apply, no evidence was presented to support the
             argument that the written statements in this case met any possible
             exception.

      Nonetheless, even if section 2001.081 did apply to the hearing in this case,

there is no record evidence indicating that its requirements were met, as the trial

court correctly concluded.      Specifically, section 2001.081 only allows the

admission of evidence “necessary to ascertain facts not reasonably susceptible of

proof under” the Texas Rules of Evidence. TEX. GOV’T CODE § 2001.081. The

district court ruled that the only record evidence on this issue indicated that the
                                         6
alleged facts contained in the hearsay statements were reasonably susceptible of

proof by live testimony. (C.R. 152.) The trial court pointed to testimony by the

school’s principal—which was the only evidence on this issue—in which he said

that he did not have any concern that it would have been difficult for the student

witnesses to provide live testimony. (C.R. 152–153.)

         Neither the ISD nor the Commissioner has cited any evidence supporting the

assertion that the student statements in this case were necessary to ascertain facts

not reasonably susceptible of proof under the rules of evidence.

               1.    The Commissioner’s arguments.

         The Commissioner makes five assertions on the “reasonably susceptible”

issue.     First, the Commissioner argues that “because the District could not

subpoena the students, the Board could not ensure the students’ appearance at the

hearing.” (Commissioner’s Brief at 23.) Notably, the Commissioner cites no

evidence that the District even asked any of the students to appear at the hearing,

much less that the District had any difficulty obtaining voluntary attendance.

         Second, the Commissioner urges that “it was unlikely that [the students’]

parents would allow them to testify and face a teacher who had embarrassed and

belittled them.” (Commissioner’s Brief at 23.) Again, the Commissioner cites no

evidence about what the parents actually thought, or even any speculation from an




                                          7
administrator about what the parents might have thought. As such, this argument

is simply unsupported conjecture.

      Third, the Commissioner asserts that “the short length of time for a

nonrenewal hearing” supports the conclusion that the alleged facts in the hearsay

statements were not reasonably susceptible of proof by live testimony.

(Commissioner’s Brief at 23.) Again, there is no citation to the record, which

reveals that the hearing in this case lasted at least three hours, with four live

witnesses and 42 exhibits. There is no evidence bearing out the Commissioner’s

implicit assertion that the students would not have been permitted to testify

because of time considerations.

      Fourth, the Commissioner contends that the “Board’s possible reluctance to

subject students to further public humiliation” supports the argument that the

students’ live testimony could not reasonably be presented. (Commissioner’s Brief

at 23.) The Commissioner is dissembling: the hearing in this case was closed to

the public, as are all such hearings, unless the teacher requests an open hearing.

See TEX. EDUC. CODE § 21.207(a). There is no evidence that possible “public

humiliation” was even considered by this Board, much less that it motivated its

actions. Accordingly, the Commissioner’s speculation does not provide grounds

for the introduction of the hearsay statements.




                                          8
      Fifth, the Commissioner relies on the Superintendent’s opinion that it would

have been “highly inappropriate” for students to testify under oath about the same

issues that they voluntarily discussed with District administration during the

investigation and that they gave written statements about. (Commissioner’s Brief

at 23–24.) Of course, the Superintendent’s views about what is “appropriate” have

nothing whatsoever to do with whether the students’ live testimony was reasonably

available.

             2.    The District’s arguments.

      The District makes two arguments on the “reasonably susceptible” issue,

which overlap with the Commissioner’s arguments and are similarly unpersuasive.

First, the District urges that “that the District lacked subpoena power to compel

[the students’] attendance.” (ISD’s Brief at 52–53.) As mentioned above, that fact

has little bearing in the absence of evidence that the District made any effort to

secure the students’ voluntary attendance. No such evidence is contained in this

record.

      Second, the District contends that “policy considerations of not forcing

minor children to testify against a teacher and be cross-examined dictate against

making their live testimony required.” (ISD’s Brief at 53.) Again, this argument

ignores the fact that forcing a witness to attend a hearing is not the only avenue to

obtain testimony from a witness. Without evidence that some effort was made to


                                         9
obtain testimony on a voluntary basis, this contention does nothing to establish that

the students’ testimony was not reasonably available.

       None of the Commissioner’s or the ISD’s arguments provides any support

for reversing the trial court’s decision that the hearsay student statements that

provided the sole basis for the non-renewal of Mr. Vazquez’s contract were not

necessary to ascertain facts not reasonably susceptible of proof by live testimony.

       C.     This case does not raise the difficult issues.

       This would be a more difficult case for the Court if the record contained

evidence that the students were unable, unwilling, or hesitant to testify, or that the

students’ parents had concerns about their testifying or forbid it, or that there was

some danger of trauma to the students if they testified live. If that evidence

existed, then the Court would have to determine whether TEX. GOV’T CODE

§ 2001.081 applies to a non-renewal hearing, and if the Court determined that it

does, the Court would have to analyze the boundaries of what it means for facts to

be “reasonably susceptible of proof” by live testimony. 1

       Because there is no such evidence in this case, the Court need not wrestle

with those issues. Even if section 2001.081 applies to a non-renewal hearing, and

1
  If the APA contested case provisions were found to govern non-renewal proceedings, it should
be noted that those provisions specifically address and limit the admission of hearsay statements
of children in child abuse cases. TEX. GOV’T CODE § 2001.122. Even if the teacher’s alleged
conduct could be considered abuse, which amicus curiae disputes, the APA would not allow the
admission of the hearsay statements of the students in this case because, among other reasons,
the students were not 12 years of age or younger. § 2001.122(a)(1).


                                               10
even if “reasonably susceptible” is given the interpretation most favorable to the

Commissioner and the District, there is nothing in the record supporting the

Commissioner’s exclusive reliance on hearsay in upholding the non-renewal of Mr.

Vazquez’s contract.

       As the district court correctly concluded,

       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.

(C.R. 153.)

                           CONCLUSION & PRAYER

       Texas law does not allow hearsay statements to form the sole basis for the

non-renewal of a teacher’s term contract in the absence of any evidence indicating

that live testimony from those witnesses was not reasonably available.

Accordingly, Texas AFT respectfully prays that the Court affirm the trial court’s

ruling in its entirety.




                                          11
                             Respectfully submitted,

                             DEATS DURST & OWEN, P.L.L.C.
                             1204 San Antonio Street, Suite 203
                             Austin, Texas 78701
                             (512) 474-6200
                             (512) 474-7896 (Fax)

                             /s/ Matt Bachop
                             Martha Owen
                             State Bar No. 15369800
                             mowen@ddollaw.com
                             Matt Bachop
                             State Bar No. 24055127
                             mbachop@ddollaw.com

                             COUNSEL FOR APPELLEES



                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this Amicus Curiae Brief complies with the
requirements of the Texas Rules of Appellate Procedure:

     1.   The brief contains 3,050 words.

     2.   The brief complies with the briefing rules for parties.

     3.   The brief is being tendered on behalf of the Appellee.

     4.   The source of any fees paid or to be paid for the preparation of this
          brief is the Texas Federation of Teachers.

     5.   Copies of this brief have been served on all parties.

                               /s/ Matt Bachop
                                 Matt Bachop


                                      12
                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing document has
been sent to counsel for all parties on this 10th day of April, 2015, by electronic
service, to:

Mark W. Robinett                          Jennifer L. Hopgood
BRIM, ARNETT & ROBINETT, P.C.             OFFICE OF THE ATTORNEY GENERAL
2525 Wallingwood Drive                    P.O. Box 12548
Building 14                               Austin, Texas 78711-2548
Austin, Texas 78746                       jennifer.hopgood@texasattorneygeneral.
mrobinett@brimarnett.com                  gov
Facsimile: (512) 328-4814
                                          Clay T. Grover
Stacy T. Castillo                         Caitlin H. Sewell
D. Craig Wood                             ROGERS, MORRIS & GROVER, L.L.P.
Elizabeth G. Neally                       5718 Westheimer, Ste. 1200
WALSH, ANDERSON, GALLEGOS, GREEN          Houston, Texas 77057
& TREVINO, P.C.                           cgrover@rmgllp.com
100 NE Loop 410, Suite 900                csewell@rmgllp.com
San Antonio, Texas 78216                  Facsimile: (713) 960-6025
scastillo@wabsa.com
cwood@wabsa.com
eneally@wabsa.com
Facsimile: (210) 979-7024


                                 /s/ Matt Bachop
                                   Matt Bachop




                                        13
