      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00336-CV



                                      James Marsh, Appellant


                                                   v.


                        State Board for Educator Certification, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
       NO. GN103656, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In this appeal from the revocation of a teaching certificate, we must determine

whether the district court’s judgment affirming an administrative order was supported by substantial

evidence. Appellant James Marsh argues that the appellee State Board for Educator Certification

denied him “substantive” due process by (i) arbitrarily determining that his past acts made him

currently “unworthy to instruct the youth of Texas” and (ii) failing to follow its own rule stating that

the Board had the burden of proving his “unworth[iness]” in the hearing process. Alternatively, if

the burden-shifting was appropriate, Marsh argues that the Board denied him due process by failing

to give him notice that he would bear the burden of proving his rehabilitation at the hearing.

Because we conclude that Marsh’s allegations of arbitrariness, improper burden-shifting, and lack
of notice are without merit and that substantial evidence supports the district court’s judgment, we

affirm.


                                           BACKGROUND

                 The State Office of Administrative Hearings (“SOAH”) considered this matter

pursuant to an agreement with the Board. See Tex. Gov’t Code Ann. § 2003.021 (West Supp. 2005).

Before the administrative hearing, the parties presented the administrative law judge (“ALJ”) with

stipulated facts, including the following:


          • Marsh was arrested on the charge of sexual assault on a child [his stepdaughter,
            R. F.] in Sarpy County, Nebraska on July 3, 1979. The case was referred to a
            juvenile court,1 where Marsh received deferred adjudication for the charge and
            was ordered to undergo psychiatric counseling.

          • During that time, Marsh was R.F.’s stepfather. Marsh was a major in the Air
            Force, and the family lived on the Offut Air Force base in Nebraska.

          • The Air Force conducted an investigation into Marsh’s abuse of R.F. During that
            investigation, the Air Force confiscated a diary in which Marsh recorded some of
            the incidents of abuse of R.F. The transcript of the diary is included in the Air
            Force records and included in Exhibit D of Petitioner’s Exhibit List as Bates
            stamp numbers 0000034-37. The transcript of the diary accurately depicts the
            events to the best of Marsh’s recollection and accurately depicts his frame of mind
            at the time the diary was made.

          • Marsh holds a Texas Teacher Certificate, which he received on September 6,
            1989. His active certification is a Mid-Management Administrator (Grades PK-
            12) certificate. During his initial application process, Marsh was not asked nor did
            he volunteer to the Texas Education Agency (“TEA”) that he had been arrested on
            the charge of sexual assault on a child. At that time, TEA was not legally


          1
          In her findings of fact, the administrative law judge stated that the records of the sexual
assault proceeding against James Marsh were sealed. Our record does not disclose why Marsh’s case
would have been referred to a juvenile court.

                                                    2
          obligated to review the criminal histories of applicants, nor were applicants
          required to reveal such histories. When TEA issued Marsh’s teacher certificates,
          it had no reason to believe that he had sexually abused a minor.

       • R.F. filed a complaint with the Board, alleging that Marsh sexually abused her
         from 1977-79, when she was 13 to 15 years old. During that time, Marsh was
         R.F.’s stepfather. Marsh was a major in the Air Force, and the family lived on the
         Offut Air Force base in Nebraska.

       • Marsh has been employed as a teacher or school administrator continuously with
         various school districts since he received his teaching certificate. The only
         complaint that the Board, or its predecessor, TEA, received regarding Marsh was
         R.F.’s, filed on May 11, 1999, which is the subject of the current litigation.


              Based on R.F.’s complaint, SOAH held a hearing on May 8, 2001. Only Marsh and

R.F. testified at the hearing. Corroborating the stipulated facts, R.F. testified that Marsh’s

inappropriate conduct was not an isolated incident. She recalled that Marsh


       • “frequently” walked in on her and opened the shower curtain while she was
         showering;

       • engaged in sexually inappropriate conversations with her, telling her that he
         wanted to “teach” her certain sexual techniques;

       • suggested that she touch her boyfriends sexually, allow them to do the same to her,
         and report the details of those encounters to him;

       • touched her in a sexually inappropriate manner on a regular basis, including
         penetrating her sexual organ with his fingers on two occasions;

       • offered to buy a truck for her if she would agree to have sexual intercourse with
         him a specified number of times; and

       • gave a back rub to a fourteen or fifteen-year-old female friend of R.F.’s while the
         friend was clad only in underwear.




                                                3
R.F. stated that Marsh never apologized for the acts he committed against her and that she still

struggles with the effects of his sexual abuse. She also testified that, after Marsh became an

educator, she followed his career as much as she could and called Marsh’s employers to inform them

that he was a confessed child abuser. She said that these reports usually caused him to leave the

schools.

               Marsh testified that he was not aware that R.F. was the individual placing the calls

to his employers. Although he sought other employment after R.F.’s calls, he stated that he was

never fired from any job or asked to resign. Marsh denied being convicted, tried, or formally

charged with any crime as a result of his arrest for sexually assaulting R.F. He also denied being

listed as a sex offender at any time. Marsh stated that he attended about sixty therapy sessions,

completing his court-ordered therapy in 1980, but he denied undergoing any additional counseling.

He further testified that he has unrestricted visitation rights with his two minor daughters.

               After hearing both parties’ testimony, the ALJ issued a proposal for decision,

including findings of fact and conclusions of law. The findings of fact in the proposal for decision

included the parties’ stipulations. The ALJ’s conclusions of law number 4-8 stated:


       4. Based on Findings of Fact Nos. 4-7 and 12, Respondent has engaged in
          intentional, reprehensible sexual assault of a child and such misconduct resulted
          in severe actual physical or mental harm to a child.

       5. A decision-maker may consider the type and severity of harm that was inflicted
          by the misconduct of a certificate holder upon a student, the intentional nature of
          the misconduct, the type of misconduct itself, and other relevant factors in
          deciding whether the offending certificate holder should be disciplined by the
          Board. 19 Tex. Admin. Code § 249.17(c).




                                                  4
       6. Based on Findings of Fact Nos. 4-12 and Conclusions of Law Nos. 4 and 5, and
          pursuant to 19 Tex. Admin. Code § 249.15(c)(2), Respondent is unworthy to
          instruct the youth of Texas.

       7. Based on Findings of Fact Nos. 9-11 and 13, Respondent failed to prove by a
          preponderance of evidence that he has been rehabilitated and should be allowed
          to retain his teaching certificate.

       8. Based on the foregoing findings and conclusions, the Board should revoke
          Respondent’s Texas Teacher Certificate No. [].


               In accordance with the ALJ’s recommendation, the Board entered a final order

revoking Marsh’s teaching certificate on August 29, 2001. The Board denied Marsh’s motion for

rehearing, and he appealed to the Travis County District Court. The court held a hearing without a

record on March 22, 2005, and issued its take-nothing judgment against Marsh on April 20, 2005.

Marsh appeals, seeking reversal of the district court’s judgment and a new administrative hearing.


                                          DISCUSSION

               The Board oversees standards of conduct of public school educators and proposes

rules that provide for disciplinary proceedings, “including the suspension or revocation of an

educator certificate, as provided by chapter 2001 of the government code [Administrative Procedure

Act].” Tex. Educ. Code Ann. §§ 21.031, .041(b)(7) (West 2006). As part of its disciplinary

authority, the Board may revoke or cancel a person’s teaching certificate based on “satisfactory

evidence” that the person is “unworthy to instruct or to supervise the youth of this state.” 19 Tex.

Admin. Code § 249.15(a)(5), (c)(2) (2006).

               Marsh’s issues on appeal are that the district court erred in affirming the

administrative order because the Board denied him “substantive” due process by (i) arbitrarily

                                                 5
determining that his past acts made him currently “unworthy to instruct the youth of Texas” and (ii)

failing to follow its rule stating that the Board had the burden of proving his “unworth[iness]” at the

hearing. Alternatively, if the burden-shifting was appropriate, Marsh argues that the Board denied

him due process by failing to give him notice that he would bear the burden of proving his

rehabilitation at the hearing.


Standard of review

                Our inquiry on appeal is whether the Board’s decision is reasonably supported by

substantial evidence in view of the reliable and probative evidence in the record as a whole. See

Public Util. Comm’n of Tex. v. Gulf States Utils. Co., 809 S.W.2d 201, 211 (Tex. 1991).

“Substantial evidence does not mean a large or considerable amount of evidence, but rather such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact.”

Granek v. Texas State Bd. of Med. Exam’rs,, 172 S.W.3d 761, 778 (Tex. App.—Austin 2005, no

pet.) (quoting Lauderdale v. Texas Dep’t of Agric., 923 S.W.2d 834, 836 (Tex. App.—Austin 1996,

no writ)).

                Agency decisions that are not supported by substantial evidence are deemed arbitrary

and capricious. Gulf States, 809 S.W.2d at 211; United Indep. Sch. Dist. v. Whitehawk, No.

03-04-00662-CV, 2006 Tex. App. LEXIS 2058, at *15 (Tex. App.—Austin, March 17, 2006, no

pet.) (mem. op.). An agency decision is arbitrary when its final order denies parties due process of

law or fails to demonstrate a connection between the agency decision and the factors that are made

relevant to that decision by the applicable statutes and regulations. Whitehawk, 2006 Tex. App.

LEXIS 2058, at *15 (citing Reliant Energy, Inc. v. Public Util. Comm’n, 153 S.W.3d 174, 184 (Tex.

                                                  6
App.—Austin 2004, no pet.)). The ultimate test of due process of law in an administrative hearing

is the presence or absence of rudiments of fair play. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984).

A court reviewing a decision for arbitrariness should consider all relevant factors and may not

substitute its judgment for that of the agency. Whitehawk, 2006 Tex. App. LEXIS 2058, at *15

(citing Gulf States, 809 S.W.2d at 211). If the Board failed to follow the clear, unambiguous

language of its own regulation, we must reverse its action as arbitrary and capricious. Gulf States,

809 S.W.2d at 207.


“Substantive” due process

    Substantial evidence of current unworthiness

               In his first issue, Marsh argues that the Board denied him “substantive” due process

under the federal or state constitutions by arbitrarily determining that his past acts made him

currently “unworthy to instruct the youth of Texas.” Specifically, he contends that the Board’s

determination of his unworthiness to instruct was arbitrary because, at the hearing, it neither offered

evidence of his current unworthiness nor contradicted the evidence of his teaching success.

Therefore, Marsh contends that “there is no substantial evidence of current unworthiness to teach

the youth of the state, in violation of the Texas Constitution, Article I, Section 13.” See U.S. Const.

amend. XIV; Tex. Const. art. I, § 13.2

               The State counters that the ALJ considered and rejected Marsh’s rehabilitation

testimony, including his teaching success, offered in support of his worthiness to instruct Texas


       2
          The Texas due course of law guarantee, which is nearly identical to the federal due process
clause, is in Article I, Section 19 of the Texas Constitution. University of Tex. Med. Sch. at Houston
v. Than, 901 S.W.2d 926, 929 (Tex. 1995); see also U.S. Const. amend. XIV; Tex. Const. art. I, § 19.
Marsh does not suggest that there is any material distinction between the two provisions.

                                                  7
youth. See Granek, 172 S.W.3d at 779 (ALJ is sole judge of witness’s credibility and may accept

or reject any witness’s testimony). The State emphasizes that Marsh offered no rehabilitation

evidence—besides his own word—to rebut the Board’s evidence of his unworthiness to instruct

Texas youth. It further contends that the decision to revoke Marsh’s certificate is not arbitrary

merely because the ALJ did not accept Marsh’s uncorroborated testimony as sufficient evidence of

his rehabilitation and worthiness to instruct.

                We may not substitute our judgment about a witness’s credibility for that of the ALJ.

Id. at 779. Marsh’s situation is similar to that of the respondent in Texas Education Agency v.

Barber, who did not deny sexually assaulting his 14 year-old former stepdaughter but relied upon

his own assertion of worthiness to support the retention of his teaching credentials. No. 164-TTC-

191, 1991 TX Educ. Agency LEXIS 233, at *3 (1991). Revoking his teaching certificate, the Board

reasoned that


       Apart from his belief, Respondent presented no evidence or guarantee that such an
       egregious breach of trust would not reoccur. . . . Possessing or exhibiting an interest
       in children as objects of sexual gratification is not to be permitted or tolerated within
       the ranks of teaching professionals of this state. Commission of such conduct as
       executed by Respondent deprives a teaching professional of the confidence and trust
       with our schoolchildren.


The fact that Marsh sexually assaulted his stepdaughter some time ago does not diminish the

relevance of his behavior to an evaluation of his fitness as an educator. As stated in Texas Education

Agency v. Duke,


       particular types of crimes, such as sexual crimes against minors or assaults against
       minors, are so heinous and of such sensitivity that they may more easily raise a

                                                  8
       presumption within the educational field that the perpetrator of the act is not fit to
       enter the environs of the teaching profession. Such crimes will always be relevant
       in assessing an applicant’s character development and present fitness to teach, no
       matter how remote the date of criminal occurrence.


No. 108-TTC-390 (1990); see also Texas Educ. Agency v. Jackson, No. 199-TTC-391 (1993).

               Here, the record shows that the ALJ considered Marsh’s


       •   failure to undergo any counseling beyond that ordered by the court in 1980;

       •   voluntary discharge from the Air Force due to unfitness and unacceptable
           conduct;

       •   employment as an assistant principal, working with children who were the same
           age that R.F. was when he abused her; and

       •   belated expression of his remorse to R.F., which occurred for the first time during
           the hearing.


This is evidence from which the Board could conclude that Marsh denies a need for treatment, works

at a job where he is surrounded by minors over whom he has authority, and lacks remorse.

Reasonable minds might accept these facts as adequate to support the conclusion that Marsh is not

rehabilitated and is unworthy to instruct Texas youth. See Granek, 172 S.W.3d at 778; Lauderdale,

923 S.W.2d at 836. Because substantial evidence supports the Board’s determination that Marsh is

unworthy to instruct the youth of Texas, we conclude that it did not act arbitrarily or capriciously in

making that determination and that the district court did not err in affirming the Board’s order.


    Shifting burden of proof

               Within his first issue, Marsh also argues that the Board deprived him of “substantive”

due process by failing to follow its rule stating that the Board had the burden of proving his

                                                  9
“unworth[iness] to instruct the youth of Texas” at the hearing. He notes that the ALJ’s seventh

conclusion of law states that he failed “to prove by a preponderance of evidence that he had been

rehabilitated and should be allowed to retain his teaching certificate.” Marsh urges that this finding

evidences that the Board improperly shifted the burden to him to prove his rehabilitation and

worthiness, rather than following its own rule and proving his unworthiness. He contends that this

alleged burden-shifting denied him “substantive” due process, was arbitrary and in violation of the

Board’s own regulation:


       (b) The petitioner in a contested case proceeding under this chapter and 1 Texas
           Administrative Code, Chapter 155 (relating to Rules of Procedure) is the party
           in a contested case seeking relief from the decision maker and requesting an
           adjudicative hearing with the office. The petitioner shall have the burden of
           proof to show by a preponderance of the evidence entitlement to such relief.


19 Tex. Admin. Code § 249.22(b) (2006).

               The Board responds that it had the burden of proving that Marsh was “unworthy to

instruct the youth of Texas” and that the finding reflects only that Marsh failed to adduce evidence

rebutting the evidence the Board presented of his unworthiness. At the hearing, the Board presented

evidence that Marsh committed acts that constituted sexual abuse of a minor. The ALJ determined

that this evidence was sufficient to show that Marsh is “unworthy to instruct the youth of Texas.”

After the Board proved its prima facie case to the ALJ, the burden properly shifted to Marsh to rebut

the Board’s evidence. See Keeton v. Texas Racing Comm’n, No. 03-03-00049-CV, 2003 Tex. App.

LEXIS 6925, at *22 (Tex. App.—Austin, August 14, 2003, pet. denied) (mem. op.) (holding that




                                                 10
once Commission presented prima facie evidence of racehorse’s positive test result for prohibited

drug, burden shifted to challenger to rebut such proof).

               We conclude that the Board did not deny due process to Marsh by improperly shifting

the burden of proof to him and that the district court did not err in affirming the Board’s order. We

overrule Marsh’s first issue.


Notice

               Alternatively, in his second issue, Marsh asserts that if the burden-shifting was

appropriate, the Board denied him due process by failing to give him notice that he would bear the

burden of proving his rehabilitation at the hearing. This argument is predicated upon Marsh’s

assertion, which we have found to be without merit, that the Board improperly shifted the burden

to him to prove his rehabilitation and worthiness to instruct Texas youth. We also hold that the

Board satisfied due process with regard to the procedures employed at the hearing.

               Review of “procedural” due process complaints like this involves a two-part analysis:

a determination of whether the appellant has a liberty or property interest that is entitled to due

process protection, and if so, a determination of what process is due. University of Tex. Med. Sch.

at Houston v. Than, 901 S.W.2d 926, 929 (Tex. 1995). The fundamental requirement of due process

is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v.

Eldridge, 424 U.S. 319, 333 (1976). In administrative proceedings, due process requires that parties

be accorded a full and fair hearing on disputed fact issues. Office of Pub. Util. Counsel v. Public

Util. Comm’n, 185 S.W.3d 555, 576 (Tex. App.—Austin 2006, pet. filed). While administrative

hearings need not meet judicial standards, they cannot be arbitrary or inherently unfair. Id.

                                                 11
                The parties agree that Marsh’s teaching certificate is an interest entitled to due process

protection, including a formal hearing, which he received. Thus, Marsh appears to argue that he was

not heard “in a meaningful manner” or provided a “fair hearing.” See Mathews, 424 U.S. at 333;

Office of Pub. Util. Counsel, 185 S.W.3d at 576. Marsh states that his certificate was revoked

because the Board found “that he did not carry a burden of proof [regarding his rehabilitation] of

which he was never given notice.” But the record shows that a copy of the Board’s original petition

containing the allegations against Marsh accompanied the notice of hearing that the Board sent to

him by certified and first class mail on February 23, 2001. The notice also explained that the

“purpose of the hearing [was] to determine whether [] Marsh has violated Title 19, Texas

Administrative Code, ch. 225 through 250, by virtue of his sexually inappropriate behavior with his

stepdaughter, [] R.F..”

                Additionally, the Board’s trial brief, which was served on Marsh before the hearing,

contains multiple references to the issue of his rehabilitation and argues that he cannot rely on the

passage of time and a satisfactory teaching record to prove that he is rehabilitated. Furthermore,

Marsh’s own trial brief asserts that the Board “must consider whether, among other factors, the

respondent is sufficiently rehabilitated to hold a certificate.” His trial brief also emphasizes that “the

likelihood of future misconduct of a similar or related nature as shown by . . . [the] lack of

rehabilitative motivation or potential” is a factor to be considered in determining whether to revoke

a teaching certificate. 19 Tex. Admin. Code § 249.17(c)(13)(C) (2006) (emphasis added). Based

on these conspicuous prehearing references to rehabilitation, we find substantial evidence of Marsh’s

notice that the burden of proof would shift to him to show his rehabilitation, after the Board’s prima



                                                   12
facie showing that Marsh was “unworthy to instruct the youth of Texas.” See Texas Racing

Comm’n, 2003 Tex. App. LEXIS 6925, at *22. Based on this evidence, Marsh’s complaint that he

was not given notice that the burden of proof would shift to him to prove his rehabilitation is without

merit.

               Because we conclude that the Board did not deny Marsh “procedural” due process,

we similarly conclude that the district court did not err in affirming the Board’s order. We overrule

Marsh’s second issue.


                                          CONCLUSION

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




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: July 28, 2006




                                                  13
