                                                                                        ACCEPTED
                                                                                   03-14-00629-CV
                                                                                          4001961
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                               2/3/2015 1:46:13 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                          NO. 03-14-00629-CV

                                                                 RECEIVED IN
                    IN THE COURT OF APPEALS                 3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                FOR THE THIRD DISTRICT OF TEXAS
                                                            2/3/2015 1:46:13 PM
                         AUSTIN, TEXAS
                                                              JEFFREY D. KYLE
                                                                    Clerk


  LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,
                                  and
   MICHAEL L. WILLIAMS, STATE COMMISSIONER OF EDUCATION,
                    in his official capacity only,
                              Appellants
                                   v.
                        JORGE VAZQUEZ,
                               Appellee


       On Appeal from the 419th District Court, Travis County, Texas
               Trial Court Cause No. D-1-GN-13-003654



TEXAS ASSOCIATION OF SCHOOL BOARDS LEGAL ASSISTANCE FUND’S
                   BRIEF OF AMICUS CURIAE
                 IN SUPPORT OF APPELLANTS


                                  CLAY T. GROVER
                                  State Bar No. 08550280
                                  cgrover@rmgllp.com
                                  CAITLIN H. SEWELL
                                  State Bar No. 24074432
                                  csewell@rmgllp.com
                                  ROGERS, MORRIS & GROVER, L.L.P.
                                  5718 Westheimer, Ste. 1200
                                  Houston, Texas 77057
                                  Telephone: (713) 960-6000
                                  Facsimile: (713) 960-602
                                  ATTORNEYS FOR AMICUS CURIAE
                                  TEXAS ASSOCIATION OF SCHOOL
                                  BOARDS LEGAL ASSISTANCE FUND
                                             TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................... i

TABLE OF AUTHORITIES ...................................................................................... ii

STATEMENT OF INTEREST OF AMICUS CURIAE ............................................. 2

STATEMENT OF THE CASE .................................................................................. 4

ISSUE PRESENTED ................................................................................................. 9

SUMMARY OF THE ARGUMENT ......................................................................... 9

STANDARD OF REVIEW ........................................................................................ 10

ARGUMENT AND AUTHORITIES ........................................................................ 10

         I.        The State has a Paramount Interest in Protecting School-Age
                   Children ................................................................................................ 10

                   A.        Legislative Protection of School Age Children ........................ 11

                   B.        Judicial Protection of School-Age Children ............................. 13

         II.       Excluding Student Statements Contravenes the State’s Interest
                   in Protecting Children and Maintaining an Efficient Educational
                   System .................................................................................................. 14

         III.      Student Statements are Sufficiently Trustworthy and Reliable to
                   Satisfy the Purposes of the Hearsay Rule............................................. 17

CONCLUSION .......................................................................................................... 20

CERTIFICATE OF COMPLIANCE ......................................................................... 22

CERTIFICATE OF SERVICE ................................................................................... 23




                                                                 i
                                            TABLE OF AUTHORITIES

                                                  FEDERAL CASES

Maryland v. Craig,
497 U.S. 836 (1990) .................................................................................................... 12, 13

Osborne v. Ohio,
495 U.S. 103 (1990) .......................................................................................................... 10


                                                    STATE CASES

Briggs v. State,
789 S.W.2d 918 (Tex. Crim. App. 1990) .......................................................................... 13

Cano v. Nino's Paint & Body Shop,
2009 LEXIS 2713 (Tex. App. —Houston [14th Distr.] April 16, 2009, no pet.) ............. 18

Dodd v. Meno,
870 S.W.2d 4 (Tex. 1994) ................................................................................................... 9

Ex Parte Morales,
212 S.W.3d 483 (Tex. App.—Austin 2006, pet. denied) ............................................ 11, 14

Gilder v. Meno,
926 S.W.2d 357 (Tex. App.—Austin 1996, writ denied) ................................................. 10

Gonzalez v. State,
818 S.W.2d 756 (Tex. Crim. App. 1991) .......................................................................... 13

Marz v. State,
953 S.W.2d 321 (Tex. App.—Austin 1997), aff'd, 987 S.W. 2d 577 ............................... 13

State v. Oakley,
356 S.W.2d 909 (Tex. 1962) ............................................................................................. 18

                                              FEDERAL STATUTES

29 U.S.C. § 1232g ............................................................................................................. 10

42 U.S.C §§ 1751-1769 ..................................................................................................... 11


                                                               ii
                                                STATE STATUTES

Tex. Admin. Code § 129.1029(c)(2) ................................................................................. 14

Tex. Code of Crim. Proc. § 38.071 .................................................................................... 13

Tex. Code of Crim. Proc. §§ 38.071, 51.095..................................................................... 12

Tex. Code of Crim. Proc. § 63.019 .............................................................................. 11, 13

Tex. Const. Art. VII § 1 ..................................................................................................... 14

Tex. Educ. Code § 11.151(b) ............................................................................................... 2

Tex. Educ. Code § 21.255 ................................................................................................. 12

Tex. Educ. Code §§ 21.206 ......................................................................................... 16, 18

Tex. Educ. Code § 21.207 ..........................................................................................Passim

Tex. Fam. Code §§ 104.002-104.006 ................................................................................ 12

Tex. Gov't Code § 2001.081 .................................................................................... 8, 12, 17

Tex. Penal Code § 21.12 .................................................................................................... 11

                                                          RULES

Tex. R. of Evid. 803, 804 .................................................................................................. 18




                                                               iii
                               NO. 03-14-00629-CV


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


LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,
                              and
MICHAEL L. WILLIAMS, STATE COMMISSIONER OF EDUCATION,
                 in his official capacity only
                          Appellants

                                       v.

                               JORGE VAZQUEZ,
                                   Appellee


       On Appeal From the 419th District Court, Travis County, Texas
                 Trial Court Cause No. D-1-GN-13-003654
                 Honorable Scott Jenkins, Judge Presiding


             TEXAS ASSOCIATION OF SCHOOL BOARDS
                LEGAL ASSISTANCE FUND’S BRIEF
          OF AMICUS CURIAE IN SUPPORT OF APPELLANTS


      The Texas Association of School Boards Legal Assistance Fund, as amicus

curiae, respectfully submits this Brief in support of Appellants Michael L.

Williams, the Texas Commissioner of Education (“Commissioner”), and Los

Fresnos Consolidated Independent School District (“Los Fresnos CISD”,

“LFCISD” or “the District”).

                                       1
             STATEMENT OF INTEREST OF AMICUS CURIAE

      Nearly 800 public school districts in Texas are members of the Texas

Association of School Boards Legal Assistance Fund (“TASB LAF”), which

advocates the positions of local school districts in litigation with potential

statewide impact. The TASB LAF is governed by three organizations: the TASB,

the Texas Association of School Administrators (“TASA”), and the Texas Council

of School Attorneys (“CSA”).

      TASB is a non-profit unincorporated association of public school districts in

the State of Texas. Approximately 1,030 public school districts in the state,

through their elected boards of trustees, are members of TASB. Approximately

146 educational cooperatives, 20 education service centers and 45 junior colleges

are also members. For all these public entities combined, the trustees total more

than 7,200. Under state law, the board of trustees of a school district has “the

exclusive power and duty to govern and oversee the management of the public

school of the district.” See Tex. Educ. Code § 11.151(b). Thus, TASB members

are responsible for the governance of Texas public schools, in accordance with

state and federal law.

      TASA represents the superintendents and other administrators of the

independent school districts in Texas.       These individuals are responsible for




                                         2
implementing and carrying out the education policies adopted by their local boards

of trustees.

       CSA is comprised of attorneys who represent more than ninety percent

(90%) of the public school districts in Texas.

       This appeal involves an important question concerning the application of the

rules of evidence, specifically the hearsay rules, in connection with a teacher non-

renewal hearing governed by § 21.207 of the Education Code. The TASB LAF’s

interest in the outcome of this appeal arises from its concern that the Appellant in

this case is essentially asking that school administrators be required to present

students as live witnesses at teacher nonrenewal hearings conducted under

§ 21.207. The TASB LAF maintains that previously-collected written or oral

student statements should be admissible in § 21.207 teacher nonrenewal hearings.

As such, the TASB LAF contends that the Commissioner of Education correctly

determined that student statements were properly admitted in Appellee Jorge

Vazquez’s (“Appellee” or “Vazquez”) § 21.207 nonrenewal hearing, and served as

substantial evidence in support of his termination. For these reasons, TASB LAF

submits this Brief, urging the Court to uphold the Commissioner’s decision.




                                          3
                                  STATEMENT OF THE CASE

        Vazquez appealed the Los Fresnos CISD Board of Trustees’ decision to

terminate his employment to the Commissioner of Education. The Commissioner

upheld the Board of Trustees’ decision, finding that it was supported by substantial

evidence. Upon subsequent appeal, the district court reversed and remanded the

case to the Commissioner to enter an order reversing the board’s nonrenewal of

Vazquez’s one-year term contract. This appeal by the Commissioner and Los

Fresnos CISD followed.

        During the 2012-2013 school year, Vazquez taught banking and financing,

computer programming, and keyboarding at the Los Fresnos United 9th grade

campus under the supervision of Principal Joseph Villarreal. A.R. Vol. II at 114,

134. In March 2013, Principal Villareal issued a “Notice of Warning” to Vazquez

arising from numerous student reports of Vazquez’s inappropriate comments in the

classroom. A.R. Vol. II at 408. Principal Villareal collected a total of eleven

statements from six different students in relation to Vazquez’s classroom

comments. A.R. Vol. II at 414-420, 428-434.1

        The March 2013 Notice of Warning from Principal Villareal was in addition

to two previous Notice of Warnings issued to Vazquez during the prior 2011-2012
1
  The student statements collected by Principal Villareal and the statements later collected by Ms. Amaro-Sibaja in
connection with her grievance investigation are intermixed in Exhibit 11, which was admitted over objection in
Vazquez’s nonrenewal hearing. A.R. Vol. II at 414, 418-420, 428-434 (statements collected by Principal Villareal);
415-417, 421-427, 435-438 (statements collected by Ms. Amaro-Sibaja); see also A.R. Vol. II at 200 (identifying
statements dated April 25th and May 3rd as those statements collected by Ms. Amaro-Sibaja).


                                                        4
school year. A.R. Vol. II at 410, 440. Former Principal McDonough (Principal

Villareal’s predecessor) issued a Notice of Warning to Vazquez in April 2012 after

learning from students that Vazquez showed an unsuitable video to the class. A.R.

Vol. II at 134-137, 440.2 Principal McDonough also issued a second Notice of

Warning to Vazquez later in April 2012, resulting from a student’s complaint to

her parent that Vazquez pretended to videotape her in the classroom as a

disciplinary technique.              A.R. Vol. II at 140-143, 410.                 Principal McDonough

collected eight students’ statements in connection with this videotaping incident.

A.R. Vol. II at 450-457.3

           After receiving his third Notice of Warning from Principal Villareal in

March 2013, Vasquez filed a grievance with the District. A.R. Vol. II at 199. Ms.

Ada Amaro-Sibaja, LFCISD Executive Director for Support Services, conducted

an independent investigation of the matter on behalf of the District. Id. During her

investigation, Ms. Amaro-Sibaja interviewed nine students from Vazquez’s classes

and collected 14 written statements. A.R. Vol. II at 199-200, 415-417, 421-427,

435-438.           Ms. Amaro-Sibaja determined that the Notice of Warning was

warranted, and denied Vazquez’s grievance. A.R. Vol. II at 203.




2
    Vazquez showed the movie “Burlesque” to the class. A.R. Vol. II at 440, 442.
3
 The student statements collected by Principal McDonough were admitted over objection as Exhibit 17 in
Vazquez’s nonrenewal hearing. A.R. Vol. II at 141.

                                                          5
        At the conclusion of the 2012-2013 school year, Principal Villareal

recommended that Vazquez’s one-year term contract be proposed for nonrenewal,

and Superintendent Gonzalo Salazar advanced the recommendation to the LFCISD

Board of Trustees. A.R. Vol. II at 286, 347. The Board accepted the school

administration’s recommendation that Vazquez’s term contract be non-renewed at

its May 13, 2013 meeting. A.R. Vol. II at 286-288. Superintendent Salazar

subsequently sent Vazquez notice that his contract had been proposed for

nonrenewal, and advised Vazquez of the specific grounds giving rise to the

Board’s action. Id. The reasons for nonrenewal revolved largely around the

student complaints of Vazquez’s actions and comments within the classroom. Id.

        Vazquez appealed the proposed non-renewal, and a hearing was held before

the LFCISD board pursuant to Tex. Educ. Code § 21.2074 on June 13, 2013. A.R.

Vol. II at 122-23. At the hearing, the administration presented the live testimony

of Principal Villareal, Executive Director Amaro-Sibaja, and Superintendent

Salazar, as well as numerous documentary exhibits. A.R. Vol. II at 134, 198-99,

207, 408, 410, 440.

        The administration also offered the 33 student witness statements, which

were collected from 17 different students over the course of the three separate

investigations into Vazquez’s misconduct in the classroom (conducted by Principal

4
 As opposed to a teacher nonrenewal hearing under Tex. Educ. Code § 21.255, the hearing was not conducted
before an independent hearing examiner.

                                                   6
McDonough, Principal Villareal, and Executive Director Amaro-Sibaja). A.R.

Vol. II at 414-438, 450-457. These statements discuss the unsuitable video that

Vazquez showed, the incident where he disciplined a student by pretending to

videotape her, and also detail the inappropriate comments that Vazquez made

within the classroom. Id. The students reported that Vazquez bullied students in

the class (for example, mocking a student’s clothing choices and insinuating that

certain students were overweight), and also made sexually-implicit comments. Id.

Specifically, Vazquez commented on a female student’s “tight little outfit,” told

another female student that she looked nice when she wore dresses, and also told a

female student that when he thinks of her it brings a smile to his face. A.R. Vol. II

at 425-428. Notably, the students reported that Vazquez’s comments made them

feel “uncomfortable.” Id.

      Vazquez offered 18 exhibits into evidence, and testified on his own behalf.

A.R. Vol. II at 230-268. Vazquez did not call any other witnesses to testify in his

defense. Id.

      The Los Fresnos CISD Board of Trustees unanimously voted to non-renew

Vazquez’s term contract based on the reasons set out in the proposed nonrenewal

notice, and the evidence and arguments presented at the hearing. A.R. Vol. II at

281-282; see also A.R. Vol. II at 286-288.




                                         7
         Vazquez appealed the Board’s decision to the Commissioner of Education,

contending that the decision was not supported by substantial evidence because the

student statements were inadmissible hearsay, and therefore, were improperly

considered by the Board in upholding his termination. A.R. Vol. I at 7. The

Commissioner determined that the student statements were properly admitted

pursuant to the liberal hearsay exception set out in Tex. Gov’t Code § 2001.081

and, relying specifically on the evidentiary value of the student statements, upheld

the Board’s decision.5 A.R. Vol. I at 22-23.

         On subsequent appeal to the district court of Travis County, the trial court

found that the student statements were inadmissible hearsay.                                          C.R. 152-54.

Further, the trial court held that the District’s failure to present Vazquez’s students

at the nonrenewal hearing to provide live testimony against him “left the

Commissioner, and this Court, without substantial evidence to support its

decision.” C.R. 153.6 The trial court reversed the Commissioner’s decision, and

remanded the case to the Commissioner to enter an order reversing the action of

the board to non-renew Vazquez’s contract. Id.




5
  The Commissioner specifically stated, “If Petitioner is to be believed his actions would not warrant the nonrenewal
of this contract. If the students are [to] be believed, Petitioner’s actions do warrant the nonrenewal of his contract. . .
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.” A.R. at 22.
6
  The trial court stated that LFCISD’s failure to call “a single witness to provide non-hearsay testimony about the
salient facts” resulted in insufficient evidence; however, only Vazquez’s students could provide such testimony.

                                                            8
                               ISSUE PRESENTED

         Whether prior statements by students are admissible in teacher
         nonrenewal hearings conducted pursuant to Texas Education
         Code § 21.207.

                      SUMMARY OF THE ARGUMENT

      Previously-recorded students statements should be admitted in teacher

nonrenewal hearings conducted under Tex. Educ. Code § 21.207 because the State

has a fundamental interest in ensuring the privacy, health, safety, and general well-

being of children by protecting them from the psychological trauma of testifying in

court procedures. Further, requiring students to provide live testimony contravenes

the efficiency and efficacy of the Texas school system. Finally, the purposes of the

hearsay rule are satisfied by the admission of student statements because the

statements provide the same, or greater, guarantee of trustworthiness and

probativeness that live testimony offers.

      Therefore, this Court should reverse the trial court’s finding that the student

statements offered in Vazquez’s Section 21.207 nonrenewal hearing are

inadmissible hearsay and do not constitute substantial evidence, and should affirm

the Commissioner’s decision upholding Los Fresnos CISD’s termination of

Vazquez’s employment.




                                            9
                           STANDARD OF REVIEW

      This Court has expressly held that, under a substantial evidence review,

which is applicable to this appeal, the Commissioner of Education should be given

great deference to his interpretation of the provisions of the Texas Education Code.

See Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994) (holding that construction of

statute by agency charged with its enforcement entitled to serious consideration, so

long as construction is reasonable and does not contradict plain language of

statute); see also Gilder v. Meno, 926 S.W.2d 357, 360 (Tex. App.—Austin 1996,

writ denied). As this Court has stated, “[t]he Commissioner is the officer charged

with administration of appeals under the TCNA. We accord his interpretation of

the statute because of his expertise and experience in dealing with the practical

problems of preserving local decision-making while still providing for an appeal to

a state administrative body.” Id. at 360. As shown below, the decision of the

Commissioner in this case is reasonable and should be affirmed.

                      ARGUMENT AND AUTHORITIES

I.    The State has a Paramount Interest in Protecting School-Age Children

      It is well-settled law that “a State’s interest in safeguarding the physical and

psychological well-being of a minor is compelling.” Osborne v. Ohio, 495 U.S.

103, 109 (1990). This “compelling” interest is reflected in the steadily-growing

body of statutes that has been enacted on a state and national level to protect

                                         10
school-age children, as well as by the judicial opinions upholding such legislation

and further broadening its scope.

         A.    Legislative Protection of School-Age Children

         State and federal legislators have enacted expansive legislation designed to

promote the safety, health, and privacy of students. See e.g., 29 U.S.C. § 1232g

(Family Education Rights and Privacy Act “FERPA” ensures the privacy of

student records); 42 U.S.C. §§ 1751-1769 (sets requirements for health and

nutrition with respect to school lunch programs); Tex. Educ. Code § 37.081

(enables the separation and isolation of students who threaten the safety of other

students); Tex. Code of Crim. Proc. § 63.019 (imposes requirements for school

record systems to prevent student kidnapping). This legislation evidences our

society’s concentrated efforts to protect students’ physical and psychological well-

being.

         In the same vein, Texas lawmakers have also created statutory safeguards to

prevent school employee misconduct that victimizes students. See Tex. Penal

Code § 21.12 (making it a second-degree felony for a school employee to engage

in any kind of sexual contact with a student of the school where the employee

works). In upholding the constitutionality of this legislation, this Court held that

the State’s interest in protecting children is particularly important in the school

context. Ex Parte Morales, 212 S.W.3d 483, 496 (Tex. App.—Austin 2006, pet.

                                          11
denied) (recognizing that students are particularly vulnerable to teachers’ misuse of

the “great trust and confidence [placed in educators] by the school, parents, and

public.”) Notably, by categorizing the protected class in terms of student-status,

rather than age, legislators have acknowledged the vulnerability of all students

within the school system, even those on the verge of graduating.7

        Moreover—in harmony with Appellants’ stance that student statements

should be admissible in § 21.207 nonrenewal hearings—Texas legislators have

shielded school-age children from testifying in administrative, civil, and criminal

courtroom procedures by enacting hearsay exceptions for out-of-court child

statements. See, e.g., Tex. Educ. Code § 21.255 (allowing hearsay child testimony

to “protect the privacy of a witness who is a child”); Tex. Code of Crim. Proc. §§

38.071, 51.095 (providing various mechanisms to allow child witness to provide

out-of court testimony against a defendant in criminal proceedings); Tex. Fam.

Code §§ 104.002-104.006 (allow child hearsay testimony in civil cases); Tex.

Gov’t Code § 2001.081, 121-122 (allowing child hearsay in administrative

proceedings).          This significant collection of statutes demonstrates the Texas

Legislature’s pointed and resolute intent to protect school-age children from the

psychological trauma of providing live testimony in a formal proceeding.



7
 See House Research Organization Bill Analysis, Acts 2003, HB 532, 73 rd Leg. (R.S.) (noting that the bill would
ensure that sexual activity with a student over 17 by a school employee would result in a criminal offense and would
not be subject to any affirmative defenses based on the age difference between the victim and defendant).

                                                        12
      B.      Judicial Protection of School-Age Children

      In the seminal case, Maryland v. Craig, 497 U.S. 836 (1990), the U.S.

Supreme Court found:

           Given the State’s traditional and transcendent interest in
           protecting the welfare of children, and buttressed by the growing
           body of academic literature documenting the psychological
           trauma suffered by child abuse victims who must testify in court
           . . . the importance of [the State’s] interest in protecting child
           abuse victims from the emotional trauma of testifying [should
           not be second-guessed.]

Id. at 855 (holding that the use of closed-circuit televised testimony does not

violate the constitutional protections afforded to criminal defendants).

      Adhering to this principle, Texas courts have steadfastly upheld legislation

allowing child hearsay testimony as constitutionally-permissible. See e.g., Briggs

v. State, 789 S.W.2d 918, 923-924 (Tex. Crim. App. 1990) (upholding the

constitutionality of Tex. Code. Crim. Proc. § 38.071). Furthermore, in light of the

State’s paramount interest in protecting children, Texas courts are endowed with

the power to permit out-of-court child statements in courtroom procedures—even

beyond the hearsay exceptions specifically provided by statute. See Gonzalez v.

State, 818 S.W.2d 756, 765 (Tex. Crim. App. 1991) (allowing child hearsay

testimony even though the provisions of Tex. Code of Crim. Proc. § 38.071 were

not met); see also Marz v. State, 953 S.W.2d 321, 329 (Tex. App.—Austin 1997),

aff’d, 987 S.W. 2d 577 (upholding the trial court’s admission of child testimony

                                          13
that did not meet the requirements of Tex. Code of Crim. Proc. § 38.071 and

affirming the defendant’s 23-year prison sentence).

II.     Excluding Student Statements Contravenes the State’s Interest in
        Protecting Children and Maintaining an Efficient Educational System

        In addition to protecting the well-being of children, the State has an interest

in “the support and maintenance of an efficient system of public free schools.” Ex

Parte Morales, 212 S.W.3d 483, 496 (Tex. App—Austin 2006, pet. denied) (citing

Tex. Const. Art. VII § 1) (emphasis added).                          As set forth below, Vazquez’s

contention that student statements are inadmissible in § 21.207 teacher nonrenewal

hearings contravenes both of these two fundamental State interests.

        Teachers spend the vast majority of their days within the confines of their

classroom—unobserved by anyone but children between the ages of 5 and 18.8 As

a result of this unique classroom cocoon, students are often the only individuals

that can provide first-hand accounts of teacher misconduct.9 Consequently, student

testimony is essential to the removal of unfit educators and, thus, an indispensable

component to a § 21.207 nonrenewal hearing.




8
   Vazquez was observed and evaluated by his school principal on 6 separate occasions for a total of 3 hours and 10
minutes during the four years preceding his nonrenewal. A.R. Vol. II at 356-388. In comparison, during the same
time frame Vazquez spent approximately 720 days and 5,000 hours in a classroom under the observation of his
students. See Tex. Admin. Code § 129.1029(c)(2) (requiring 180 instructional days).
9
 Here, Vazquez’s comments were made only within the hearing of his students. A.R. Vol. II at 414-438. Likewise,
his inappropriate actions (e.g., pretending to videotape a student) were observed only by his students. Id.


                                                       14
        As such, the exclusion of pre-recorded student statements in § 21.207

hearings (i.e., allowing the trial court’s ruling to stand) will result in the following:

             Psychological trauma to students

        School districts will be compelled to subject students—potentially as young

as 5 or 6 years old—to the psychological trauma of giving live testimony against

an authority figure before an audience of their parents, teachers, principals, school

board members, classmates, and other members of the public.10 This testimony

may be painful or humiliating for the student, particularly if it involves allegations

of sexual impropriety.11 This testimony may also expose the student to retaliation

from other school employees or bullying from his or her classmates.

        Additionally, as the Commissioner noted in this case, requiring live student

testimony at a non-renewal hearing will expose children to the trauma of

undergoing “cross examination by an attorney who is zealously advocating for his

client’s employment.” C.R. 23.

             Waste of school resources

        School districts will be obligated to spend considerable time, effort, public

funds, and other resources persuading students to testify at nonrenewal hearings, as


10
  Vazquez’s nonrenewal hearing was closed, but a nonrenewal hearing may be open to the public upon the teacher’s
request. Tex. Educ. Code § 207(a); see also A.R. Vol. II at 123.
11
  For example, it likely would be painful and humiliating for Vazquez’s students to testify about being mocked for
their clothing choices and implied they were fat. A.R. Vol. II at 414, 417, 420-421.


                                                       15
well as convincing their parents to allow it. See Tex. Educ. Code § 21.207. These

logistical challenges are particularly magnified due to the timing of nonrenewal

hearings, which typically take place after students have been released for the

summer break, and given that the school district is not granted subpoena power

under Tex. Educ. Code § 21.207. See Tex. Educ. Code §§ 21.206-207, 256.12

             Decreased quality of educational services provided to students

        If a school district’s efforts to present live student testimony are

unsuccessful, then there will often be insufficient evidence to support the teacher’s

nonrenewal. Consequently, poorly-performing teachers will remain in classrooms,

and Texas students will be subjected to sub-quality educational services.

             Student exposure to physical, sexual, and emotional abuse

        Additionally, a school district’s inability to non-renew a teacher (because a

student refused, or was unable, to testify at the § 21.207 nonrenewal hearing)

potentially exposes students to future physical, sexual, and emotional abuse at the

hands of that teacher. This is particularly concerning in light of the rising number

of sexual allegations against educators.13

12
  Here, Vazquez’s hearing was held on June 13th, when students are likely to be away at summer camp or on a
family vacation. A.R. Vol. II at 117.
13
   The number of investigations by TEA staff specifically on allegations of inappropriate relationships between
school district employees and students has increased from 141 in 2009-2010 to 179 in 2013-2014—an increase of 27
percent in only three years. See TEA News Releases, Texas Safe Schools Week: Shared Responsibility in
Identifying, Reporting Inappropriate Educator-Student Relationships, Oct. 23, 2014, www.tea.texas.gov. Here, part
of the student testimony concerned Vazquez’s sexually-implicit comments regarding a female student’s “tight little
outfit,” another female student looking nice when she wore dresses, and how it brings a smile to his face when he
thinks of yet another female student. A.R. Vol. II at 425-428.

                                                       16
           Therefore, excluding student statements from § 21.207 nonrenewal

hearings—and thereby requiring live testimony from students—threatens the well-

being of school-age children, and also impedes the efficiency and efficacy of the

Texas school system.

III.       Student Statements are Sufficiently Trustworthy and Reliable to Satisfy
           the Purposes of the Hearsay Rule

           In their briefs to this Court, the Commissioner and Los Fresnos CISD argue

that the Texas Rules of Evidence do not apply to § 21.207 nonrenewal hearings,

and therefore, the student statements were not subject to the hearsay rule and were

properly admitted pursuant to the procedural rules adopted by the LFCISD

Board.14           Alternatively, Appellants argue that the student statements were

admissible under the liberal hearsay exceptions provided under Tex. Gov’t Code

§ 2001.081.15            Both arguments essentially pivot on the inquiry: Were the

statements sufficiently trustworthy for the LCISD board to consider in reaching its

decision to non-renew Vazquez’s term contract? Without waiving or otherwise

detracting from the validity of Appellants’ arguments—but looking beyond the

mechanical intricacies addressed by the Commissioner and LFCISD—the student

statements at issue were admissible in the nonrenewal hearing because they satisfy

the fundamental purpose of the hearsay rule to ensure the reliability of evidence.

14
     See Los Fresnos CISD’s Appellate Brief at p. 35; Commissioner’s Appellate Brief at p. 17.
15
     See Los Fresnos CISD’s Appellate Brief at p. 51; Commissioner’s Appellate Brief at p. 18.


                                                          17
         The hearsay rule “is more than a technical rule. It is a principle, whose

purpose is assurance that a full and truthful disclosure of facts will be possible. It

must [only] be as broad as its purpose.” State v. Oakley, 356 S.W.2d 909, 915

(Tex. 1962) (dissent by J. Smith). The hearsay exceptions (including the exception

provided by Tex. Gov’t Code § 2001.081) allow otherwise inadmissible hearsay

testimony if it is shown to be reliable and trustworthy, and if the evidence is not

otherwise reasonably available.16

         Importantly, student statements are made close in time to the event

described, when the student’s recollections are still fresh and distinct.17                                         In

contrast, student testimony in teacher nonrenewal hearings is typically given after

several months, even years, have passed since the teacher misconduct occurred.

See Tex. Educ. Code §§ 21.206-207, 256 (dictating that teacher non-renewal

hearings may only be held on the conclusion of the school year). As such, the

statements typically provide greater clarity and depth than live testimony would

render. See, e.g., Tex. R. Evid. 803(1) (hearsay exception allowing present sense

impressions).

         In addition to being nearer in time, student statements also provide greater

probativeness than live testimony because the statements are prepared within a safe
16
   See, e.g., Tex. R. of Evid. 803, 804; see also Cano v. Nino’s Paint & Body Shop, 2009 LEXIS 2713, at *12 (Tex.
App.—Houston [14th Dist.] April 16, 2009, no pet.) (holding that the trial court was within its discretion to admit
business records that failed to fully satisfy the hearsay exception because the records were sufficiently trustworthy).
17
   The student statements were collected in April 2012 and March-April 2013, much closer in time to when the
events occurred than if the students testified live at Vazquez’s nonrenewal hearing on June 13, 2013. A.R. Vol. II at
117, 205, 414-438, 450-457.

                                                         18
atmosphere, where students can fully describe the events without the intimidating

presence of the offending teacher, the principal, superintendent, other school

employees, board members, parents, and various community members.18

        Further, as addressed previously in this brief, live student testimony is not

readily available due to: (1) students’ reluctance to testify in a public setting

against an authority figure about topics of a potentially sensitive nature; (2)

parents’ averseness to their child suffering the psychological trauma of testifying in

a courtroom setting and undergoing cross examination; (3) the difficulty in locating

students during the summer break; and (4) the administration’s inability to

subpoena student testimony. Supra at 15-16.

        Finally, Los Fresnos CISD made the existence of the statements known—

including the particulars of the statements—sufficiently in advance of the

statements’ use to allow Vazquez a fair opportunity to prepare to meet them. A.R.

Vol. II at 286-345, 408, 410, 440. Vazquez could have presented witnesses to

rebut the student statements and bolster his own testimony, but he chose not to do

so. A.R. Vol. II at 230-268

        In sum, testimony offered by students in prerecorded statements has the

same, or greater, degree of trustworthiness, reliability, and probativeness than if the

students’ live testimony was offered at teacher nonrenewal hearings. As such, the

18
  In the present case, students were individually asked open-ended questions in the privacy of the LFCISD
administrator’s office, and asked to write out their answers. See A.R. Vol. II at 201, 413-438.

                                                       19
student statements were properly admitted in Vazquez’s nonrenewal hearing and

served as substantial evidence in support of the LFCISD Board’s decision to non-

renew his term contract.

                                CONCLUSION

      Pre-recorded student statements should be admissible in nonrenewal

hearings conducted under Tex. Educ. Code § 21.207 in light off the State’s

fundamental interests in protecting children and ensuring an efficient school

system. Further, student statements are sufficiently trustworthy and reliable to

satisfy the purposes of the hearsay rule. Thus, the student statements against

Vazquez were properly admitted and constituted substantial evidence in support of

the LFCISD Board’s decision to non-renew Vazquez’s term contract. Therefore,

amicus curiae, TASB LAF, respectfully requests that this Court reverse the trial

court’s judgment and affirm the Commissioner’s decision upholding the

nonrenewal action.




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Respectfully submitted,

ROGERS, MORRIS & GROVER, L.L.P.


___________________________________
CLAY T. GROVER
State Bar No. 08550280
cgrover@rmgllp.com
CAITLIN H. SEWELL
State Bar No. 24074432
csewell@rmgllp.com
5718 Westheimer, Ste. 1200
Houston, Texas 77057
Telephone: (713) 960-6000
Facsimile: (713) 960-6025

ATTORNEYS FOR AMICUS CURIAE
TEXAS ASSOCIATION OF SCHOOL
BOARDS LEGAL ASSISTANCE FUND




 21
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that this Amicus Curiae Brief complies with the
requirements of the Texas Rules of Appellate Procedure.

      1.    The word count of this document is 4,510.

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

      3.    The brief is being tendered on behalf of Appellants.

      4.    The source of any fees paid or to be paid for the preparation of this
            brief is the Texas Association of School Boards Legal Assistance
            Fund.

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




                                      ___________________________________
                                      Clay T. Grover




                                        22
                        CERTIFICATE OF SERVICE

      This is to certify that, on February 3, 2015, a true and correct copy of the
foregoing document has been served on the following by electronic service:


                            Mr. Mark W. Robinett
                        BRIM, ARNETT & ROBINETT, P.C.
                           2525 Wallingwood Drive
                                 Building 14
                             Austin, Texas 78746
                          mrobinett@brimarnett.com
                          Telephone: (512) 328-0048
                          Facsimile: (512) 328-4814

                          Ms. Stacy Tuer Castillo
             WALSH, ANDERSON, GALLEGOS, GREEN & TREVINO, P.C.
                        100 NE Loop 410, Suite 900
                         San Antonio, Texas 78216
                           scastillo@wabsa.com
                        Telephone: (210) 979-6633
                         Facsimile: (210) 979-7024

                             Ms. Jennifer L. Hopgood
                            Assistant Attorney General
                           Administrative Law Division
                       OFFICE OF THE ATTORNEY GENERAL
                                 P.O. Box 12548
                            Austin, Texas 78711-2548
                   jennifer.hopgood@texasattorneygeneral.gov



                                     ____________________________________
                                     ATTORNEY FOR AMICUS CURIAE




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