TITLE 19. EDUCATION

PART 7. STATE BOARD FOR EDUCATOR CERTIFICATION

CHAPTER 235. CLASSROOM TEACHER CERTIFICATION STANDARDS

The State Board for Educator Certification (SBEC) proposes new §§235.1, 235.11, 235.19, 235.41, 235.59, 235.61, and 235.89, concerning classroom teacher certification standards. The proposed new sections would implement recent legislation from the 85th Texas Legislative Session, 2017, specify the pedagogy and professional responsibilities (PPR) educator standards required for classroom teacher certification, and clarify the implementation date for the new standards. The proposed new sections reflect feedback provided by the SBEC-appointed Classroom Teacher Standards Advisory Committee for the early childhood-Grade 3 (EC-3), Grades 4-8 (4-8), and Grades 7-12 (7-12) PPR standards.

The SBEC is statutorily authorized to regulate and oversee all aspects of the certification of public school educators. SBEC is also statutorily authorized to ensure that all candidates for certification or renewal of certification demonstrate the knowledge and skills necessary to improve the performance of the diverse population of this state.

At the March and June 2017 SBEC meetings, the Board and Texas Education Agency (TEA) staff discussed the desire to establish the educator standards for the classroom teacher into rule and to provide grade-band focused PPR educator standards that are aligned with 19 TAC Chapter 149, Commissioner's Rules Concerning Educator Standards, and the commissioner-recommended appraisal instrument to better prepare beginning teachers. At the June 9, 2017,SBEC meeting, the Board approved the Classroom Teacher Standards Advisory Committee to begin the work of recommending PPR standards for the grade bands: EC-3, 4-8, and 7-12. The subcommittee for each grade band was convened to prioritize and provide feedback on the current teacher standards in 19 TAC Chapter 149.

At the August 4, 2017,SBEC meeting, TEA staff updated the SBEC on the activities completed by the advisory committee and presented the Board with the PPR standards the committee was recommending and the next steps for adopting the standards in rule.

The SBEC rules in proposed new 19 TAC Chapter 235, Classroom Teacher Certification Standards, Subchapter A, General Provisions, Subchapter B, Elementary School Certificate Standards, Subchapter C, Middle School Certificate Standards, and Subchapter D, Secondary School Certificate Standards, establish in rule the educator standards for the classroom teacher class of certificates. The educator standards are the basis for educator preparation program (EPP) design to effectively prepare beginning classroom teachers and the foundation for the certification examinations. The proposed standards provide for more rigorous, relevant, and reliable requirements for the preparation, certification, and testing of classroom teachers upon entry into the profession and retention of these qualified professionals.

Following is a description of proposed new 19 TAC Chapter 235 that would implement recent legislation, reflect SBEC direction, and incorporate feedback from the SBEC-appointed advisory committee for the PPR educator standards for the classroom teacher by grade bands: EC-3, 4-8, and 7-12. The numbering of the proposed new sections provides room for future adoption in rule of additional educator standards for the classroom teacher class.

Subchapter A. General Provisions

§235.1. General Requirements

Proposed new subsection (a) would clarify that the standards identified in this chapter must be used by EPPs in the development of curricula and coursework as well as serve as the basis for the classroom teacher certification examinations. Proposed new subsection (b) would clarify that the standards underlying the content certification examinations are aligned with the Texas Essential Knowledge and Skills curriculum adopted by the State Board of Education to demonstrate the connection between what students are expected to know and the knowledge and skill expectations of the teachers who are instructing the students. Proposed new subsection (c) would clarify that all candidates for standard certification must pass the appropriate examination(s) prior to issuance of a standard certificate.

Subchapter B. Elementary School Certificate Standards

Proposed new 19 TAC Chapter 235, Subchapter B, would incorporate all elementary school classroom teacher certificate standards under one subchapter.

Division 1. Early Childhood-Grade 3

Proposed new 19 TAC Chapter 235, Subchapter B, Division 1, Early Childhood-Grade 3, would comply with TEC, §21.0489, as added by SB 1839 and HB 2039, 85th Texas Legislature, Regular Session, 2017. The proposed new rule would specify the PPR educator standards required of candidates seeking the EC-3 classroom teacher certificate.

§235.11. Pedagogy and Professional Responsibilities Standards, Early Childhood-Grade 3

Proposed new subsection (a) would clarify the PPR standards for EC-3 for classroom teachers of early learners and are aligned with classroom teaching expectations as outlined in 19 TAC Chapter 149, Commissioner's Rules Concerning Educator Standards. Proposed new subsection (b) would specify the standards needed in regards to a teacher's ability to plan and deliver instruction. Proposed new subsection (c) would specify the standards needed in regards to a teacher's ability to ensure high levels of learning, social-emotional development, and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Proposed new subsection (d) would specify the standards needed in regards to a teacher's content knowledge and expertise. Proposed new subsection (e) would specify the standards needed in regards to a teacher's ability to manage a safe and supportive learning environment. Proposed new subsection (f) would specify the standards needed in regards to a teacher's ability to apply data-driven practices. Proposed new subsection (g) would specify the standards needed in regards to a teacher's ability to abide by educator professional practices and responsibilities.

§235.19. Implementation Date, Early Childhood-Grade 3

The proposed new section would clarify that the provisions of this subchapter apply to candidates admitted to an EPP on or after September 1, 2018.

Subchapter C. Middle School Certificate Standards

Proposed new 19 TAC Chapter 235, Subchapter C, would incorporate all middle school classroom teacher certificate standards under one subchapter.

§235.41. Pedagogy and Professional Responsibilities Standards, Grades 4-8

Proposed new subsection (a) would clarify the PPR standards for classroom teachers of students in Grades 4-8 and are aligned with classroom teaching expectations as outlined in 19 TAC Chapter 149, Commissioner's Rules Concerning Educator Standards. Proposed new subsection (b) would specify the standards needed in regards to a teacher's ability to plan and deliver instruction. Proposed new subsection (c) would specify the standards needed in regards to a teacher's ability to ensure high levels of learning and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Proposed new subsection (d) would specify the standards needed in regards to a teacher's content knowledge and expertise. Proposed new subsection (e) would specify the standards needed in regards to a teacher's ability to manage a safe and supportive learning environment. Proposed new subsection (f) would specify the standards needed in regards to a teacher's ability to apply data-driven practices. Proposed new subsection (g) would specify the standards needed in regards to a teacher's ability to abide by educator professional practices and responsibilities.

§235.59. Implementation Date, Grades 4-8

The proposed new section would clarify that the provisions of this subchapter apply to candidates admitted to an EPP on or after September 1, 2018.

Subchapter D. Secondary School Certificate Standards

Proposed new 19 TAC Chapter 235, Subchapter D, would incorporate all secondary school classroom teacher certificate standards under one subchapter.

§235.61. Pedagogy and Professional Responsibilities Standards, Grades 7-12

Proposed new subsection (a) would clarify the PPR standards for classroom teachers of students in Grades 7-12 and are aligned with classroom teaching expectations as outlined in 19 TAC Chapter 149, Commissioner's Rules Concerning Educator Standards. Proposed new subsection (b) would specify the standards needed in regards to a teacher's ability to plan and deliver instruction. Proposed new subsection (c) would specify the standards needed in regards to a teacher's ability to ensure high levels of learning and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Proposed new subsection (d) would specify the standards needed in regards to a teacher's content knowledge and expertise. Proposed new subsection (e) would specify the standards needed in regards to a teacher's ability to manage a safe and supportive learning environment. Proposed new subsection (f) would specify the standards needed in regards to a teacher's ability to apply data-driven practices. Proposed new subsection (g) would specify the standards needed in regards to a teacher's ability to abide by educator professional practices and responsibilities.

§235.89. Implementation Date, Grades 7-12

The proposed new section would clarify that the provisions of this subchapter apply to candidates admitted to an EPP on or after September 1, 2018.

The proposed new sections would have no procedural and reporting implications. The proposed new sections would have no locally maintained paperwork requirements.

FISCAL NOTE. Ryan Franklin, associate commissioner for educator leadership and quality, has determined that for the first five-year period the new sections are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the new sections. There is no effect on local economy for the first five years that the proposed new sections are in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed new sections do not impose a cost on regulated persons, another state agency, a special district, or local government and, therefore, are not subject to Texas Government Code, §2001.0045.

PUBLIC BENEFIT/COST NOTE. Mr. Franklin has determined that for each year of the first five years the new sections are in effect the public benefit anticipated as a result of enforcing the new sections would be more rigorous, relevant, and reliable requirements for the preparation, certification, and testing of classroom teachers upon entry into the profession and retention of these qualified professionals. There is no anticipated economic cost to persons who are required to comply with the proposed new sections.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

GOVERNMENT GROWTH IMPACT: The TEA staff has determined that the proposed new sections do not have a government growth impact pursuant to Texas Government Code, §2001.0221.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins November 3, 2017, and ends December 4, 2017. The SBEC will take registered oral and written comments on the proposed new sections at the December 8, 2017,meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposed new sections submitted under the Administrative Procedure Act must be received by the Department of Educator Leadership and Quality, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Mr. Ryan Franklin, associate commissioner for educator leadership and quality, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on November 3, 2017.

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §235.1

STATUTORY AUTHORITY. The new section is proposed under the Texas Education Code (TEC), §21.003(a), which states that a person may not be employed as a teacher, teacher intern or teacher trainee, librarian, educational aide, administrator, educational diagnostician, or school counselor by a school district unless the person holds an appropriate certificate or permit issued as provided by the TEC, Chapter 21, Subchapter B; TEC, §21.031, which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state; TEC, §21.041(a), which authorizes the SBEC to adopt rules as necessary to implement its procedures; TEC, §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; TEC, §21.041(b)(2) and (4), which require the SBEC to propose rules that specify the classes of educator certificates to be issued, including emergency certificates, and the requirements for the issuance and renewal of an educator certificate; and TEC, §21.0489, as added by SB 1839 and HB 2039, 85th Texas Legislature, Regular Session, 2017, which requires the SBEC to create a prekindergarten-Grade 3 certificate.

CROSS REFERENCE TO STATUTE. The new section implements the Texas Education Code (TEC), §§21.003(a); 21.031; and 21.041(a) and (b)(1), (2), and (4); and 21.0489, as added by Senate Bill (SB) 1839 and House Bill (HB) 2039, 85th Texas Legislature, Regular Session, 2017.

§235.1.General Requirements.

(a) The knowledge and skills identified in this section must be used by an educator preparation program in the development of the curricula and coursework as prescribed in §228.30 of this title (relating to Educator Preparation Curriculum) and serve as the basis for developing the examinations as prescribed in §230.35 of this title (relating to Development, Approval, Implementation, and Evaluation of Teacher Certification Standards).

(b) Unless provided otherwise in this title, the content area and grade level of a certificate category as well as the standards underlying the certification examination for each category are aligned with the Texas Essential Knowledge and Skills curriculum adopted by the State Board of Education, as prescribed in §233.1(c) of this title (relating to General Authority).

(c) A person must satisfy all applicable requirements and conditions under this title and other law to be issued a certificate in a category. A person seeking an initial standard certification must pass the appropriate examination(s) as prescribed in §230.21 of this title (relating to Educator Assessment).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704270

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER B. ELEMENTARY SCHOOL CERTIFICATE STANDARDS

DIVISION 1. EARLY CHILDHOOD-GRADE 3

19 TAC §235.11, §235.19

STATUTORY AUTHORITY. The new sections are proposed under the Texas Education Code (TEC), §21.031, which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state; TEC, §21.040(4), which states that the SBEC shall, for each class of educator certificate, appoint an advisory committee composed of members of that class to recommend standards for that class to the board; TEC, §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; and TEC, §21.041(b)(2) and (4), which require the SBEC to propose rules that specify the classes of educator certificates to be issued, including emergency certificates, and the requirements for the issuance and renewal of an educator certificate.

CROSS REFERENCE TO STATUTE. The new sections implement the Texas Education Code (TEC), §§21.031, 21.040(4), and 21.041(b)(1), (2), and (4).

§235.11.Pedagogy and Professional Responsibilities Standards, Early Childhood-Grade 3.

(a) Early childhood-Grade 3 pedagogy and professional responsibilities (PPR) standards. The PPR standards identified in this section are targeted for classroom teachers of early learners (birth through age eight). The standards address the discipline that deals with the theory and practice of teaching to inform skill-based training and development. The standards inform proper teaching techniques, strategies, teacher actions, teacher judgements, and decisions by taking into consideration theories of learning, understandings of students and their needs, and the backgrounds and interests of individual students. The standards are also aligned with the Commissioner's Teacher Standards in 19 TAC Chapter 149 of this title (relating to Commissioner's Rules Concerning Educator Standards).

(b) Instructional Planning and Delivery. Early childhood-Grade 3 classroom teachers demonstrate understanding of instructional planning and delivery by providing standards-based, data-driven, differentiated instruction that engages students and makes learning relevant for today's learners. Early childhood-Grade 3 classroom teachers must:

(1) develop lessons that build coherently toward objectives based on course content, curriculum scope and sequence, and expected student outcomes;

(2) effectively communicate goals, expectations, and objectives to help all students reach high levels of achievement;

(3) connect students' prior understanding and real-world experiences to new content and contexts, maximizing learning opportunities;

(4) plan instruction that is developmentally appropriate, is standards driven, and motivates students to learn;

(5) differentiate instruction, aligning methods and techniques to diverse student needs, including acceleration, remediation, and implementation of individual education plans;

(6) plan student groupings, including pairings and individualized and small-group instruction, to facilitate student learning;

(7) integrate the use of oral, written, graphic, kinesthetic, and/or tactile methods to teach key concepts;

(8) ensure that the learning environment features a high degree of student engagement by facilitating discussion and student-centered activities as well as leading direct instruction;

(9) encourage all students to overcome obstacles and remain persistent in the face of challenges, providing them with support in achieving their goals;

(10) set high expectations and create challenging learning experiences for students, encouraging them to apply disciplinary and cross-disciplinary knowledge to real-world problems;

(11) provide opportunities for students to engage in individual and collaborative critical thinking and problem solving;

(12) monitor and assess students' progress to ensure that their lessons meet students' needs;

(13) provide immediate feedback to students in order to reinforce their learning and ensure that they understand key concepts; and

(14) adjust content delivery in response to student progress through the use of developmentally appropriate strategies that maximize student engagement.

(c) Knowledge of Student and Student Learning. Early childhood-Grade 3 classroom teachers work to ensure high levels of learning, social-emotional development, and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Early childhood-Grade 3 classroom teachers must:

(1) create a community of learners in an inclusive environment that views differences in learning and background as educational assets;

(2) connect learning, content, and expectations to students' prior knowledge, life experiences, and interests in meaningful contexts;

(3) understand the unique qualities of students with exceptional needs, including disabilities and giftedness, and know how to effectively address these needs through instructional strategies and resources;

(4) understand the role of language and culture in learning and know how to modify their practice to support language acquisition so that language is comprehensible and instruction is fully accessible;

(5) understand how learning occurs and how learners develop, construct meaning, and acquire knowledge and skills; and

(6) identify readiness for learning and understand how development in one area may affect students' performance in other areas.

(d) Content Knowledge and Expertise. Early childhood-Grade 3 classroom teachers exhibit an understanding of content, discipline, and related pedagogy as demonstrated through the quality of the design and execution of lessons and the ability to match objectives and activities to relevant state standards. Early childhood-Grade 3 classroom teachers must:

(1) have expertise in how their content vertically and horizontally aligns with the grade-level/subject area continuum, leading to an integrated curriculum across grade levels and content areas;

(2) identify gaps in students' knowledge of subject matter and communicate with their leaders and colleagues to ensure that these gaps are adequately addressed across grade levels and subject areas;

(3) keep current with developments, new content, new approaches, and changing methods of instructional delivery within their discipline;

(4) organize curriculum to facilitate student understanding of the subject matter;

(5) understand, actively anticipate, and adapt instruction to address common misunderstandings and preconceptions;

(6) promote literacy and the academic language within the discipline and make discipline-specific language accessible to all learners;

(7) teach both the key content knowledge and the key skills of the discipline; and

(8) make appropriate and authentic connections across disciplines, subjects, and students' real world experiences.

(e) Learning Environment. Early childhood-Grade 3 classroom teachers interact with students in respectful ways at all times, maintaining a physically and emotionally safe, supportive learning environment that is characterized by efficient and effective routines, clear expectations for student behavior, and organization that maximizes student learning. Early childhood-Grade 3 classroom teachers must:

(1) embrace students' backgrounds and experiences as an asset in their learning;

(2) maintain and facilitate respectful, supportive, positive, and productive interactions with and among students;

(3) establish and sustain learning environments that are developmentally appropriate and respond to students' needs, strengths, and personal experiences;

(4) create a physical classroom set-up that is flexible and accommodates the different learning needs of students;

(5) implement behavior management systems to maintain an environment where all students can learn effectively;

(6) maintain a culture that is based on high expectations for student performance and encourages students to be self-motivated, taking responsibility for their own learning;

(7) maximize instructional time, including managing transitions;

(8) manage and facilitate groupings in order to maximize student collaboration, participation, and achievement; and

(9) communicate regularly, clearly, and appropriately with parents and families about student progress, providing detailed and constructive feedback and partnering with families in furthering their students' achievement goals.

(f) Data-Driven Practices. Early childhood-Grade 3 classroom teachers use formal and informal methods to assess student growth aligned to instructional goals and course objectives and regularly review and analyze multiple sources of data to measure student progress and adjust instructional strategies and content delivery as needed. Early childhood-Grade 3 classroom teachers must:

(1) gauge student progress and ensure mastery of content knowledge and skills by providing assessments aligned to instructional objectives and outcomes that are accurate measures of student learning;

(2) analyze and review data in a timely, thorough, accurate, and appropriate manner, both individually and with colleagues, to monitor student learning; and

(3) design instruction, change strategies, and differentiate their teaching practices to improve student learning based on assessment outcomes.

(g) Professional Practices and Responsibilities. Early childhood-Grade 3 classroom teachers consistently hold themselves to a high standard for individual development, collaborate with other educational professionals, communicate regularly with stakeholders, maintain professional relationships, comply with all campus and school district policies, and conduct themselves ethically and with integrity. Early childhood-Grade 3 classroom teachers must:

(1) reflect on their own strengths and professional learning needs, using this information to develop action plans for improvement;

(2) seek out feedback from supervisor, coaches, and peers and take advantage of opportunities for job-embedded professional development;

(3) adhere to the educators' code of ethics in §247.2 of this title (relating to Code of Ethics and Standard Practices for Texas Educators), including following policies and procedures at their specific school placement(s);

(4) communicate consistently, clearly, and respectfully with all members of the campus community, administrators, and staff; and

(5) serve as advocates for their students, focusing attention on students' needs and concerns and maintaining thorough and accurate student records.

§235.19.Implementation Date, Early Childhood-Grade 3.

The provisions of this subchapter apply to an applicant who is admitted to an educator preparation program for the Classroom Teacher Certificate on or after September 1, 2018.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704271

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER C. MIDDLE SCHOOL CERTIFICATE STANDARDS

19 TAC §235.41, §235.59

STATUTORY AUTHORITY. The new sections are proposed under the Texas Education Code (TEC), §21.031, which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state; TEC, §21.040(4), which states that the SBEC shall, for each class of educator certificate, appoint an advisory committee composed of members of that class to recommend standards for that class to the board; TEC, §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; and TEC, §21.041(b)(2) and (4), which require the SBEC to propose rules that specify the classes of educator certificates to be issued, including emergency certificates, and the requirements for the issuance and renewal of an educator certificate.

CROSS REFERENCE TO STATUTE. The new sections implement the Texas Education Code (TEC), §§21.031, 21.040(4), and 21.041(b)(1), (2), and (4).

§235.41.Pedagogy and Professional Responsibilities Standards, Grades 4-8.

(a) Grades 4-8 pedagogy and professional responsibilities (PPR) standards. The PPR standards identified in this section are targeted for classroom teachers of students in Grades 4-8. The standards address the discipline that deals with the theory and practice of teaching to inform skill-based training and development. The standards inform proper teaching techniques, strategies, teacher actions, teacher judgements, and decisions by taking into consideration theories of learning, understandings of students and their needs, and the backgrounds and interests of individual students. The standards are also aligned with the Commissioner's Teacher Standards in 19 TAC Chapter 149 of this title (relating to Commissioner's Rules Concerning Educator Standards).

(b) Instructional Planning and Delivery. Grades 4-8 classroom teachers demonstrate understanding of instructional planning and delivery by providing standards-based, data-driven, differentiated instruction that engages students and makes learning relevant for today's learners. Grades 4-8 classroom teachers must:

(1) develop lessons that build coherently toward objectives based on course content, curriculum scope and sequence, and expected student outcomes;

(2) effectively communicate goals, expectations, and objectives to help all students reach high levels of achievement;

(3) connect students' prior understanding and real-world experiences to new content and contexts, maximizing learning opportunities;

(4) plan instruction that is developmentally appropriate, is standards driven, and motivates students to learn;

(5) use a range of instructional strategies, appropriate to the content area, to make subject matter accessible to all students;

(6) differentiate instruction, aligning methods and techniques to diverse student needs, including acceleration, remediation, and implementation of individual education plans;

(7) ensure that the learning environment features a high degree of student engagement by facilitating discussion and student-centered activities as well as leading direct instruction;

(8) set high expectations and create challenging learning experiences for students, encouraging them to apply disciplinary and cross-disciplinary knowledge to real-world problems;

(9) provide opportunities for students to engage in individual and collaborative critical thinking and problem solving;

(10) monitor and assess students' progress to ensure that their lessons meet students' needs;

(11) provide immediate feedback to students in order to reinforce their learning and ensure that they understand key concepts; and

(12) adjust content delivery in response to student progress through the use of developmentally appropriate strategies that maximize student engagement.

(c) Knowledge of Student and Student Learning. Grades 4-8 classroom teachers work to ensure high levels of learning and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Grades 4-8 classroom teachers must:

(1) create a community of learners in an inclusive environment that views differences in learning and background as educational assets;

(2) connect learning, content, and expectations to students' prior knowledge, life experiences, and interests in meaningful contexts;

(3) understand the unique qualities of students with exceptional needs, including disabilities and giftedness, and know how to effectively address these needs through instructional strategies and resources;

(4) understand the role of language and culture in learning and know how to modify their practice to support language acquisition so that language is comprehensible and instruction is fully accessible; and

(5) understand how learning occurs and how learners develop, construct meaning, and acquire knowledge and skills.

(d) Content Knowledge and Expertise. Grades 4-8 classroom teachers exhibit an understanding of content and related pedagogy as demonstrated through the quality of the design and execution of lessons and the ability to match objectives and activities to relevant state standards. Grades 4-8 classroom teachers must:

(1) keep current with developments, new content, new approaches, and changing methods of instructional delivery within their discipline;

(2) organize curriculum to facilitate student understanding of the subject matter;

(3) understand, actively anticipate, and adapt instruction to address common misunderstandings and preconceptions;

(4) promote literacy and the academic language within the discipline and make discipline-specific language accessible to all learners; and

(5) teach both the key content knowledge and the key skills of the discipline.

(e) Learning Environment. Grades 4-8 classroom teachers interact with students in respectful ways at all times, maintaining a physically and emotionally safe, supportive learning environment that is characterized by efficient and effective routines, clear expectations for student behavior, and organization that maximizes student learning. Grades 4-8 classroom teachers must:

(1) embrace students' backgrounds and experiences as an asset in their learning;

(2) maintain and facilitate respectful, supportive, positive, and productive interactions with and among students;

(3) implement behavior management systems to maintain an environment where all students can learn effectively;

(4) maintain a culture that is based on high expectations for student performance and encourages students to be self-motivated, taking responsibility for their own learning;

(5) maximize instructional time, including managing transitions; and

(6) communicate regularly, clearly, and appropriately with parents and families about student progress, providing detailed and constructive feedback and partnering with families in furthering their students' achievement goals.

(f) Data-Driven Practices. Grades 4-8 classroom teachers use formal and informal methods to assess student growth aligned to instructional goals and course objectives and regularly review and analyze multiple sources of data to measure student progress and adjust instructional strategies and content delivery as needed. Grades 4-8 classroom teachers must:

(1) gauge student progress and ensure mastery of content knowledge and skills by providing assessments aligned to instructional objectives and outcomes that are accurate measures of student learning;

(2) analyze and review data in a timely, thorough, accurate, and appropriate manner, both individually and with colleagues, to monitor student learning; and

(3) design instruction, change strategies, and differentiate their teaching practices to improve student learning based on assessment outcomes.

(g) Professional Practices and Responsibilities. Grades 4-8 classroom teachers consistently hold themselves to a high standard for individual development, collaborate with other educational professionals, communicate regularly with stakeholders, maintain professional relationships, comply with all campus and school district policies, and conduct themselves ethically and with integrity. Grades 4-8 classroom teachers must:

(1) reflect on their own strengths and professional learning needs, using this information to develop action plans for improvement;

(2) seek out feedback from supervisor, coaches, and peers and take advantage of opportunities for job-embedded professional development;

(3) adhere to the educators' code of ethics in §247.2 of this title (relating to Code of Ethics and Standard Practices for Texas Educators), including following policies and procedures at their specific school placement(s); and

(4) communicate consistently, clearly, and respectfully with all members of the campus community, administrators, and staff.

§235.59.Implementation Date, Grades 4-8.

The provisions of this subchapter apply to an applicant who is admitted to an educator preparation program for the Classroom Teacher Certificate on or after September 1, 2018.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704272

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER D. SECONDARY SCHOOL CERTIFICATE STANDARDS

19 TAC §235.61, §235.89

STATUTORY AUTHORITY. The new sections are proposed under the Texas Education Code (TEC), §21.031, which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators to ensure that all candidates for certification demonstrate the knowledge and skills necessary to improve the performance of the diverse student population of this state; TEC, §21.040(4), which states that the SBEC shall, for each class of educator certificate, appoint an advisory committee composed of members of that class to recommend standards for that class to the board; TEC, §21.041(b)(1), which requires the SBEC to propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; and TEC, §21.041(b)(2) and (4), which require the SBEC to propose rules that specify the classes of educator certificates to be issued, including emergency certificates, and the requirements for the issuance and renewal of an educator certificate.

CROSS REFERENCE TO STATUTE. The new sections implement the Texas Education Code (TEC), §§21.031, 21.040(4), and 21.041(b)(1), (2), and (4).

§235.61.Pedagogy and Professional Responsibilities Standards, Grades 7-12.

(a) Grades 7-12 pedagogy and professional responsibilities (PPR) standards. The PPR standards identified in this section are targeted for classroom teachers of students in Grades 7-12. The standards address the discipline that deals with the theory and practice of teaching to inform skill-based training and development. The standards inform proper teaching techniques, strategies, teacher actions, teacher judgements, and decisions by taking into consideration theories of learning, understandings of students and their needs, and the backgrounds and interests of individual students. The standards are also aligned with the Commissioner's Teacher Standards in 19 TAC Chapter 149 of this title (relating to Commissioner's Rules Concerning Educator Standards).

(b) Instructional Planning and Delivery. Grades 7-12 classroom teachers demonstrate understanding of instructional planning and delivery by providing standards-based, data-driven, differentiated instruction that engages students and makes learning relevant for today's learners. Grades 7-12 classroom teachers must:

(1) develop lessons that build coherently toward objectives based on course content, curriculum scope and sequence, and expected student outcomes;

(2) effectively communicate goals, expectations, and objectives to help all students reach high levels of achievement;

(3) connect students' prior understanding and real-world experiences to new content and contexts, maximizing learning opportunities;

(4) plan instruction that is developmentally appropriate, is standards driven, and motivates students to learn;

(5) use a range of instructional strategies, appropriate to the content area, to make subject matter accessible to all students;

(6) differentiate instruction, aligning methods and techniques to diverse student needs, including acceleration, remediation, and implementation of individual education plans;

(7) ensure that the learning environment features a high degree of student engagement by facilitating discussion and student-centered activities as well as leading direct instruction;

(8) set high expectations and create challenging learning experiences for students, encouraging them to apply disciplinary and cross-disciplinary knowledge to real-world problems;

(9) provide opportunities for students to engage in individual and collaborative critical thinking and problem solving;

(10) monitor and assess students' progress to ensure that their lessons meet students' needs;

(11) provide immediate feedback to students in order to reinforce their learning and ensure that they understand key concepts; and

(12) adjust content delivery in response to student progress through the use of developmentally appropriate strategies that maximize student engagement.

(c) Knowledge of Student and Student Learning. Grades 7-12 classroom teachers work to ensure high levels of learning and achievement outcomes for all students, taking into consideration each student's educational and developmental backgrounds and focusing on each student's needs. Grades 7-12 classroom teachers must:

(1) create a community of learners in an inclusive environment that views differences in learning and background as educational assets;

(2) accept responsibility for the growth of all of their students, persisting in their efforts to ensure high levels of growth on the part of each learner;

(3) connect learning, content, and expectations to students' prior knowledge, life experiences, and interests in meaningful contexts;

(4) understand the unique qualities of students with exceptional needs, including disabilities and giftedness, and know how to effectively address these needs through instructional strategies and resources;

(5) understand the role of language and culture in learning and know how to modify their practice to support language acquisition so that language is comprehensible and instruction is fully accessible; and

(6) understand how learning occurs and how learners develop, construct meaning, and acquire knowledge and skills.

(d) Content Knowledge and Expertise. Grades 7-12 classroom teachers exhibit an understanding of content and related pedagogy as demonstrated through the quality of the design and execution of lessons and the ability to match objectives and activities to relevant state standards. Grades 7-12 classroom teachers must:

(1) keep current with developments, new content, new approaches, and changing methods of instructional delivery within their discipline;

(2) organize curriculum to facilitate student understanding of the subject matter;

(3) understand, actively anticipate, and adapt instruction to address common misunderstandings and preconceptions;

(4) promote literacy and the academic language within the discipline and make discipline-specific language accessible to all learners; and

(5) teach both the key content knowledge and the key skills of the discipline.

(e) Learning Environment. Grades 7-12 classroom teachers interact with students in respectful ways at all times, maintaining a physically and emotionally safe, supportive learning environment that is characterized by efficient and effective routines, clear expectations for student behavior, and organization that maximizes student learning. Grades 7-12 classroom teachers must:

(1) embrace students' backgrounds and experiences as an asset in their learning;

(2) maintain and facilitate respectful, supportive, positive, and productive interactions with and among students;

(3) implement behavior management systems to maintain an environment where all students can learn effectively;

(4) maintain a culture that is based on high expectations for student performance and encourages students to be self-motivated, taking responsibility for their own learning;

(5) maximize instructional time, including managing transitions; and

(6) communicate regularly, clearly, and appropriately with parents and families about student progress, providing detailed and constructive feedback and partnering with families in furthering their students' achievement goals.

(f) Data-Driven Practices. Grades 7-12 classroom teachers use formal and informal methods to assess student growth aligned to instructional goals and course objectives and regularly review and analyze multiple sources of data to measure student progress and adjust instructional strategies and content delivery as needed. Grades 7-12 classroom teachers must:

(1) gauge student progress and ensure mastery of content knowledge and skills by providing assessments aligned to instructional objectives and outcomes that are accurate measures of student learning;

(2) analyze and review data in a timely, thorough, accurate, and appropriate manner, both individually and with colleagues, to monitor student learning; and

(3) design instruction, change strategies, and differentiate their teaching practices to improve student learning based on assessment outcomes.

(g) Professional Practices and Responsibilities. Grades 7-12 classroom teachers consistently hold themselves to a high standard for individual development, collaborate with other educational professionals, communicate regularly with stakeholders, maintain professional relationships, comply with all campus and school district policies, and conduct themselves ethically and with integrity. Grades 7-12 classroom teachers must:

(1) reflect on their own strengths and professional learning needs, using this information to develop action plans for improvement;

(2) seek out feedback from supervisor, coaches, and peers and take advantage of opportunities for job-embedded professional development;

(3) adhere to the educators' code of ethics in §247.2 of this title (relating to Code of Ethics and Standard Practices for Texas Educators), including following policies and procedures at their specific school placement(s);

(4) communicate consistently, clearly, and respectfully with all members of the campus community, administrators, and staff; and

(5) serve as advocates for their students, focusing attention on students' needs and concerns and maintaining thorough and accurate student records.

§235.89.Implementation Date, Grades 7-12.

The provisions of this subchapter apply to an applicant who is admitted to an educator preparation program for the Classroom Teacher Certificate on or after September 1, 2018.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704273

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


CHAPTER 245. CERTIFICATION OF EDUCATORS FROM OTHER COUNTRIES

19 TAC §§245.1, 245.5, 245.10

The State Board for Educator Certification (SBEC) proposes amendments to §§245.1, 245.5, and 245.10, concerning certification of educators from other countries. The proposed amendments would update the requirements for certification of educators from other countries following the four-year rule review required by Texas Government Code, §2001.039.

The SBEC rules in 19 TAC Chapter 245, Certification of Educators from Other Countries, establish requirements for issuance of Texas certification to educators from other countries.

Following is a description of the proposed amendments.

§245.1. General Provisions

The proposed amendment to subsection (a) would delete the word "appropriate" and add the word "acceptable" to align with wording used to describe the type of certificate that should be submitted to the Texas Education Agency (TEA) for review of credentials issued by the authorized licensing agency in another country. This proposed language matches that used in 19 TAC Chapter 230, Subchapter H, Texas Educator Certificates Based on Certification and College Credentials from Other States or Territories of the United States. Aligning the rule text provides further consistency to the credentials review process for Texas certification.

The proposed amendment to subsection (b) would strike the words "at a minimum" and "baccalaureate" and add the phrases "at least a bachelor's," "or higher," and "accredited" to align with wording used to describe degree requirements for individuals issued certification by the authorized licensing agency in another country. This proposed language would match language used in 19 TAC Chapter 230, Subchapter B, General Certification Requirements. Aligning the rule text provides further consistency to the credentials review process for Texas certification. Also in subsection (b), the phrase "or by the U.S. Department of Education" would be added at the end of the last sentence. This proposed change would provide an additional way to verify degrees from other countries if not on the Texas Higher Education Coordinating Board list of recognized accreditors.

The proposed amendment to subsection (e) would delete the phrases "and certification areas issued by" and "including all certification areas" and replace with language that aligns with 19 TAC Chapter 230, Subchapter H. Aligning the rule text provides further consistency to the credentials review process for Texas certification.

New proposed subsection (f) would add text identical to that referenced in 19 TAC Chapter 230, Subchapter H, §230.11(f), General Requirements, to align with the process in place and established deadlines for educators certified in other states that are working to meet certification requirements.

§245.5. Requirements for Issuance of a Texas Certificate Based on Certification from Another Country

The proposed amendment to subsection (a) would replace the incorrect reference to Chapter 232, Subchapter A, with references to Chapter 230, Subchapter D, to accurately reflect the location of the rule text relevant to the types and classes of certificates issued. The proposed amendment would also add the phrase "an acceptable" to specify the type of certificate an applicant must hold to complete the out-of-country credentials review process and qualify for issuance of a Texas standard certificate.

The proposed amendment to subsection (a)(1) would correct the outdated reference to §230.5 with the correct reference to §230.21 as it relates to required examinations for certification reflected in SBEC rule.

The same amendment would be made to subsection (a)(2) to ensure that the citation is updated to point to the correct information in SBEC rule.

Proposed new subsection (c) would add language to confirm an individual is eligible to apply for issuance of the standard certificate upon completion of all certification requirements, including examinations. The additional language would help avoid a delay in issuance of certificates, as it would clarify candidates are eligible to submit the online application and payment for the standard certificate when all required examinations are passed.

Former subsection (c) would be relettered to subsection (d), and the incorrect reference to §232.1 would be corrected to Chapter 230, Subchapter D. At the end of this subsection, the phrase "beyond the control of the educator" would be added to emphasize the types of extenuating circumstances to be considered, and the word "educator" would be changed to "district" to confirm that any requests to extend the one-year certificate must be initiated by the school district, not the individual.

New proposed subsection (e) would confirm an individual is only required to pass examinations for those certificate area(s) in which he or she wishes to be issued a standard certificate. The new subsection would also clarify that a supplemental certificate (e.g., bilingual, English as a Second Language, special education, gifted and talented, or visually impaired) cannot be issued as a standard certificate without first establishing a classroom certificate in a content area. This additional clarification provides guidance to individuals on the correct order in which to complete requirements for issuance of a base classroom certificate in advance of being eligible for issuance of a supplemental certificate in one of the areas offered.

Former subsection (d), relettered to subsection (f), would be amended to update a cross reference and correct a typographical error.

§245.10. Application Procedures

The proposed amendment to subsection (a)(4) would add the words "and/or degrees" to allow completion of degrees earned in the United States to also be submitted as acceptable documentation for the out-of-country credentials review process.

Proposed new subsection (a)(5) would add copies of any standard certificates issued by another state department of education to the list of items that should be submitted to TEA when applying for a credentials review. This addition to the rules would ensure that individuals completing a credentials review process are reviewed for every eligible certificate area. In addition, adding the clarification to include copies of any standard certificates from other states would ensure the applicants get a complete review of credentials and a full accounting of all certificate areas that they are eligible to pursue in Texas. A standard certificate issued by another state department of education can also be used in lieu of the letter of professional standing referenced in subsection (a)(3). Adding this provision into rule would allow individuals from outside the U.S. to have an option to substitute a certificate issued by another state department of education in lieu of the professional standing letter if either cost-prohibitive or in some cases dangerous to return to the particular country of licensure.

The proposed amendment to newly renumbered subsection (a)(6) and subsections (b)(2) and (c)(2) would replace the incorrect references to Chapter 230, Subchapter N, with the correct references to Chapter 230, Subchapter G, as that is the location for all information related to fees for certification services.

The proposed amendments would have no additional procedural and reporting implications. The proposed amendments would have no additional locally maintained paperwork requirements.

FISCAL NOTE. Ryan Franklin, associate commissioner for educator leadership and quality, has determined that for the first five-year period the amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the amendments. There is no effect on local economy for the first five years that the proposed amendments are in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed amendments do not impose a cost on regulated persons, another state agency, a special district, or local government and, therefore, are not subject to Texas Government Code, §2001.0045.

PUBLIC BENEFIT/COST NOTE. Mr. Franklin has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments would be clearly defined rules and requirements for individuals to obtain Texas certification based on already being licensed to teach in other countries. There is no anticipated economic cost to persons who are required to comply with the proposed amendments.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

GOVERNMENT GROWTH IMPACT: The TEA staff has determined that the proposed amendments do not have a government growth impact pursuant to Texas Government Code, §2001.0221.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins November 3, 2017, and ends December 4, 2017. The SBEC will take registered oral and written comments on the proposed amendments at the December 8, 2017, meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposed amendments submitted under the Administrative Procedure Act must be received by the Department of Educator Leadership and Quality, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Mr. Ryan Franklin, associate commissioner for educator leadership and quality, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on November 3, 2017.

STATUTORY AUTHORITY. The amendments are proposed under the Texas Education Code (TEC), §21.041(b)(1), which states the State Board for Educator Certification (SBEC) must propose rules that provide for the regulation of educators and the general administration of the TEC, Chapter 21, Subchapter B, in a manner consistent with the TEC, Chapter 21, Subchapter B; TEC, §21.041(b)(4), which states the SBEC must propose rules that specify the requirements for the issuance and renewal of an educator certificate; TEC, §21.041(b)(5), which states the SBEC must propose rules that provide for the issuance of an educator certificate to a person who holds a similar certificate issued by another state or foreign country, subject to the TEC, §21.052; TEC, §21.048(a), which states the SBEC must propose rules prescribing comprehensive examinations for each class of certificate issued by the SBEC; TEC, §21.050, which states that a person who applies for a teaching certificate for which SBEC rules require a bachelor's degree must possess a bachelor's degree received with an academic major or interdisciplinary academic major, including reading, other than education, that is related to the curriculum as prescribed under TEC, Chapter 28, Subchapter A; TEC, §21.052(a), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017, which states that the SBEC may issue a certificate to an educator who submits an application for certification and holds a degree issued by an institution accredited by a regional accrediting agency or group that is recognized by a nationally recognized accreditation board, or a degree issued by an institution located in a foreign country, if the degree is equivalent to a bachelor's degree issued in the United States, or holds an appropriate certificate issued in another state and has met all certification requirements for issuance of the credential; TEC, §21.052(b), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017, which states that for purposes of §21.052(a)(2), a person is considered to hold a certificate or other credential if the credential is not valid solely because it has expired; TEC, §21.052(c), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017, which states that the SBEC may issue a temporary certificate under this section to an educator who holds a degree required by §21.052(a)(1) and a certificate or other credential required by §21.052(a)(2) but who has not satisfied the requirements prescribed by §21.052(a)(3); TEC, §21.052(d), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017, which states that a temporary certificate issued under §21.052(c) to an educator employed by a school district that has constructed or expanded at least one instructional facility as a result of increased student enrollment due to actions taken under the Defense Base Closure and Realignment Act of 1990 (10 U.S.C. Section 2687) may not expire before the first anniversary of the date on which the SBEC completes the review of the educator's credentials and informs the educator of the examination or examinations under the TEC, §21.048, on which the educator must perform successfully to receive a standard certificate; TEC, §21.052(e), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017, which states that an educator who has submitted all documents required by the board for certification and who receives a certificate as provided by subsection (a) must perform satisfactorily on the examination prescribed under Section 21.048 not later than the first anniversary of the date the board completes the review of the educator's credentials and informs the educator of the examination or examinations under Section 21.048 on which the educator must perform successfully to receive a standard certificate; and TEC, §22.0831(f), which states the SBEC is authorized to propose rules to implement the national criminal history record information review of certified educators.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code, §§21.041(b)(1), (4), and (5); 21.048(a); 21.050; 21.052(a)-(e), as amended by Senate Bill (SB) 1839, 85th Texas Legislature, 2017; and 22.0831(f).

§245.1.General Provisions.

(a) A Texas educator certificate may be issued to an individual who holds a college degree and an acceptable [appropriate] certificate or other credential issued by the authorized licensing agency in another country and who meets appropriate requirements specified in §230.11 [§230.413] of this title (relating to General Requirements) and in this chapter.

(b) The degree held by an applicant from another country must be[, at a minimum,] equivalent to at least a bachelor's [a baccalaureate] degree or higher issued by an accredited institution of higher education in the United States accredited or otherwise approved by an accrediting organization recognized by the Texas Higher Education Coordinating Board or by the U.S. Department of Education.

(c) The certificate(s) or other credential(s) issued by the authorized licensing agency in another country may not be a temporary permit, a credential issued by a city or school district, or a certificate for which academic or other program deficiencies are indicated. Specific examination or renewal requirements shall not be considered academic or program deficiencies.

(d) A statement, approval letter, or certification entitlement card issued by the authorized licensing agency in another country specifying eligibility for full certification upon employment or completion of specified examination requirements shall have the same standing as a certificate.

(e) The certificate(s) or other credential(s) and areas of certification issued by the authorized licensing agency in another country must be equivalent to a certificate or grade level that is within the early childhood-Grade 12 level and approved by [and certification areas issued by] the State Board for Educator Certification (SBEC). Based on the certificate(s) submitted with the application for review of credentials, the [The] Texas Education Agency (TEA) staff shall identify the certification areas for which the applicant qualifies in Texas. The certificate(s) [certificate, including all certification areas] for which the applicant qualifies[,] may be issued by the TEA staff under the authority of the SBEC.

(f) If a Texas examination or certification is scheduled to be eliminated, an individual requesting certification and examination comparability must ensure that the application and all review documentation, including examination scores, are received by TEA staff 60 calendar days before the application submission deadline for the examination and/or certification sought.

§245.5.Requirements for Issuance of a Texas Certificate Based on Certification from Another Country.

(a) The appropriate standard certificate issued under Chapter 230 [232], Subchapter D [A], of this title (relating to Types and Classes of Certificates Issued), may be issued to an applicant holding an acceptable [a] certificate or other credential and college degree as specified in §245.1 of this title (relating to General Provisions). The applicant must:

(1) pass the appropriate examination(s) prescribed in the Texas Education Code (TEC), §21.048(a), and §230.21 [§230.5] of this title (relating to Educator Assessment); or

(2) achieve an acceptable score on an examination(s) similar to and at least as rigorous as the requirements prescribed in the TEC, §21.048(a), and §230.21 [§230.5 ] of this title that was administered under the authority of another country. The applicant shall verify in a manner determined by the Texas Education Agency staff the level of performance on acceptable examinations administered under the authority of another country.

(b) If all certification requirements are met, except successful completion of the appropriate certification examination(s), the applicant may request issuance of a one-year certificate in one or more of the certification areas authorized by the certificate(s) or other credential(s) from another country. An applicant who holds only a credential that is equivalent to a student services, principal, or superintendent certificate issued in accordance with Chapter 239 of this title (relating to Student Services Certificates), with the exception of Subchapter E (relating to Master Teacher Certificate); Chapter 241 of this title (relating to Principal Certificate); or Chapter 242 of this title (relating to Superintendent Certificate) may be issued the equivalent Texas certificate. The applicant must verify two creditable years of public or private school experience, as defined in Chapter 153, Subchapter CC, of this title (relating to Commissioner's Rules on Creditable Years of Service) and the TEC, §5.001(2), in the specific student services or administrative area sought.

(c) After satisfying all certification requirements, including all appropriate examination requirements, the applicant is eligible to apply for issuance of the standard certificate issued under Chapter 230, Subchapter D, of this title (relating to Types and Classes of Certificates Issued).

(d) [(c)] An applicant issued a one-year certificate under Chapter 230, Subchapter D, [ §232.1] of this title [(relating to Types of Certificates) ] and this chapter who does not satisfy the appropriate examination requirements to establish eligibility for a standard certificate during the validity of the one-year certificate is not eligible for any type of certificate or permit authorizing employment for the same certification level or area until he or she has satisfied the examination requirements. If, due to extenuating circumstances beyond the control of the educator, examination requirements are not met during the validity period of the one-year certificate, the district [educator ] may request an extension of the one-year certificate, not to exceed one calendar year in length.

(e) An applicant shall not be required to complete the content specialization portion of the certification examination in a certification area for which he or she does not seek standard certification unless the examination is required to establish a base classroom teaching certificate. A supplemental certificate, as described in Chapter 233 of this title (relating to Categories of Classroom Teaching Certificates), may not be issued as a standard certificate unless the educator has established a classroom teaching certificate.

(f) [(d)] An applicant issued a one-year certificate under subsection (d) [(c)] of this section who, during or subsequent to the validity of the one-year certificate, satisfies the appropriate examination requirements and establishes eligibility for a standard certificate may apply for:

(1) a new one-year certificate in another certification area based on a certificate or other credential issued by [a] another country; or

(2) a second one-year certificate in an area previously authorized on a one-year certificate, provided the applicant was not assigned to the area and has not attempted the appropriate examination requirements for that area.

§245.10.Application Procedures.

(a) An individual who has been issued an appropriate certificate or other credential by the authorized licensing agency in another country as specified in §245.1 of this title (relating to General Provisions) may apply for a review of credentials by submitting the following items to the Texas Education Agency (TEA) staff:

(1) a completed application;

(2) the original detailed report or course-by-course evaluation for professional licensing of all college-level credits prepared by a foreign credential evaluation service recognized by the TEA staff. The evaluation must verify that the individual:

(A) holds, at a minimum, the equivalent of a baccalaureate degree issued by an accredited institution of higher education in the United States as specified in §245.1(b) of this title, including the date that the degree was conferred; and

(B) has completed an educator preparation program, including a teaching practicum;

(3) an original written statement, provided by the authorized licensing agency in the issuing country, that the educator certificate(s) or other credential(s) specified in §245.1 of this title is currently in good standing and has not been revoked, suspended, or sanctioned for misconduct and is not pending disciplinary or adverse action. The statement must be written in the English language or must be accompanied by a translation in the English language from a foreign credential evaluation service recognized by the TEA staff or an accredited translation service;

(4) official transcripts of any additional college credits and/or degrees earned in the United States; [and]

(5) copies of any standard certificates issued by another state department of education; and

(6) [(5)] a nonrefundable review fee as specified in Chapter 230, Subchapter G [N], of this title (relating to Certificate Issuance Procedures).

(b) Pursuant to §245.5(b) of this title (relating to Requirements for Issuance of a Texas Certificate Based on Certification from Another Country) an applicant may apply for a one-year certificate by submitting the following items to the TEA staff:

(1) a completed application; and

(2) the appropriate fee as specified in Chapter 230, Subchapter G [N], of this title.

(c) Pursuant to §245.5(a) of this [the ] title, an applicant may apply for a standard certificate by submitting the following items to the TEA staff:

(1) a completed application; and

(2) the appropriate fee as specified in Chapter 230, Subchapter G [N], of this title.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704274

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


CHAPTER 249. DISCIPLINARY PROCEEDINGS, SANCTIONS, AND CONTESTED CASES

The State Board for Educator Certification (SBEC) proposes amendments to §§249.3, 249.12, 249.14, 249.15, 249.17, and 249.35, concerning disciplinary proceedings, sanctions, and contested cases. The proposed amendments would implement the statutory requirements of Senate Bill (SB) 7, 85th Texas Legislature, Regular Session, 2017; set minimum sanctions for administrators who fail to report educator misconduct; clarify the reasons for which the SBEC can deny a certificate to an applicant; require reporting administrators to provide additional factual details in educator misconduct reports; and clarify the law that applies when educators default after failing to answer a petition.

SB 7, 85th Texas Legislature, Regular Session, 2017, effective September 1, 2017, makes significant changes to administrator reporting requirements and reporting enforcement regarding educator misconduct, requiring amendments to 19 TAC §§249.3, 249.12, 249.14, 249.15, and 249.17.

SB 7 creates a new requirement that principals report to their superintendents or directors within seven business days of an educator's resignation following an incident of certain misconduct or of when the principal knew of the educator's criminal record. SB 7 clarifies that superintendents must report to the SBEC within seven business days after receiving a report from a principal or within seven business days of when the superintendent or director knew about an educator's criminal record or resignation or termination following an alleged incident of misconduct. SB 7 creates new authority for the SBEC to issue administrative penalties between $500-$10,000 for superintendents, directors, and principals that fail to report educator misconduct. The proposed amendments to §§249.14(d)-(f), 249.15(a)(6), and 249.17(j) would implement these legislative requirements.

As part of implementing SB 7, the proposed amendments include minimum penalties for administrators who fail to report educator misconduct but sign agreed orders without proceeding to a contested case hearing. The proposed amendments create lower minimum penalties for principals who fail to report to superintendents than for superintendents who fail to report to the SBEC. The variation in penalties reflects the difference in reporting obligations under TEC, §21.006, as amended by SB 7, which requires superintendents to report only when they know of misconduct but requires principals to report within seven business days regardless of when they discover the misconduct. It also reflects the greater responsibility superintendents have, as a result of their positions of authority over principals and teachers, to ensure a safe educational environment for students where there is no tolerance for educator misconduct.

SB 7 also gives the SBEC explicit authority to suspend, revoke, or refuse to issue a certificate of a person who has assisted another person in obtaining employment at a school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law and to revoke the certificate of an administrator who employed an applicant when the administrator knew that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor. The proposed amendments to §249.3 and §249.15(b) would implement these legislative requirements.

Additionally, the proposed amendment to 19 TAC §249.12(b) is necessary to clarify the reasons for which the SBEC can deny certification to an applicant, including when the applicant has committed an act that would make them subject to required revocation under TEC, §21.058, and when the applicant has committed an act that would make them subject to mandatory permanent revocation or denial under 19 TAC §249.17(i).

The proposed amendment to 19 TAC §249.14(f) would increase the factual details that administrators are required to provide when reporting educators to the SBEC for misconduct to include the current employment status of the subject and any involvement by a law enforcement or other agency. This information would give the Educator Investigations Division at the Texas Education Agency additional information to allow for more efficient investigations.

The proposed amendment to 19 TAC §249.35(f) would clarify that the SBEC will enter final orders on defaults that occur either under Texas Government Code, §2001.056, or 1 TAC, Part 7, §155.501. The use of "and" had led to confusion regarding which code provisions applied to defaults that resulted from an educator failing to answer a petition prior to the contested case being set for hearing before the State Office of Administrative Hearings.

The proposed amendments would also remove redundancies and include technical edits to conform with Texas Register style and formatting requirements.

The proposed amendments would have procedural and reporting implications. SB 7 creates additional reporting responsibilities for principals, who must report educator misconduct to superintendents. SB 7 does not change the requirements with respect to who reports to the SBEC or when reporting to the SBEC is required. The proposed amendments change the information that a superintendent is required to report to the SBEC when making a report, but this change should not impose a significant additional burden on reporting superintendents. The proposed amendment to 19 TAC §249.14 would add the following two new categories of information to provide: current employment status and involvement by law enforcement.

The proposed amendments would have no additional locally maintained paperwork requirements.

FISCAL NOTE. Ryan Franklin, associate commissioner for educator leadership and quality, has determined that for the first five-year period the amendments are in effect, there will be no foreseeable additional cost to state or local government or a foreseeable reduction in cost to local government, but may create a slight reduction in costs to state government from efficiencies that could come as a result of the clearer and more enforceable rules. There will be an extremely small increase in revenue to the state estimated at $7,000 each year for Fiscal Year (FY) 2018 through FY 2022 as a result of implementing the administrative penalties as sanctions on principals and superintendents who fail to report educator misconduct. This estimate is based on the small number of superintendents whom the SBEC currently sanctions for failure to report, which averages to one per year. There will be no increase in revenue to local government.

There is no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. TEA staff has determined that the proposed amendments could impose an indirect cost on regulated persons, if a person subject to the law fails to comply. However, the proposed amendments are exempt from Texas Government Code, §2001.0045, as provided under this statute, because the amendments are necessary to implement SB 7, 85th Texas Legislature, Regular Session, 2017.

PUBLIC BENEFIT/COST NOTE. Mr. Franklin has determined that for each year of the first five years the amendments are in effect the public benefit anticipated as a result of enforcing the amendments would be fewer educators who go from one school district to another without being reported for having inappropriate relationships with students or minors. An additional benefit is that there are fewer opportunities for individuals to become certified educators if they have been required to register as sex offenders or have committed misconduct that would result in permanent revocation if they were certified educators. There is an anticipated economic cost to persons who are required to comply with the proposed amendments. There will be a cost of $500-$10,000 each to principals, superintendents, and directors who fail to report educator misconduct timely and become subject to administrative penalties under the proposed amendments to 19 TAC §249.15(a)(6) and §249.17(j). The costs to persons required to comply with the proposed amendments is estimated at $7,000 each year for FY 2018 through FY 2022. This estimate is based on the small number of superintendents whom the SBEC currently sanctions for failure to report, which averages to one per year.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact for small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

GOVERNMENT GROWTH IMPACT: In accordance with Texas Government Code, §2001.0221, TEA staff has determined that the proposed amendments do not result in an increase in fees paid to the agency. The proposal would allow the SBEC to levy administrative fines of $500-$10,000 against a certified principal, superintendent, or director who fails to report educator misconduct, in accordance with SB 7. An administrative penalty is not a fee; it is a penalty for failure to comply with the applicable law. The SBEC currently sanctions fewer than 10 administrators per year for failing to report educator misconduct, so only very few individuals would be impacted by this increase.

REQUEST FOR PUBLIC COMMENT. The public comment period on the proposal begins November 3, 2017, and ends December 4, 2017. The SBEC will take registered oral and written comments on the proposed amendments at the December 8, 2017,meeting in accordance with the SBEC board operating policies and procedures. All requests for a public hearing on the proposed amendments submitted under the Administrative Procedure Act must be received by the Department of Educator Leadership and Quality, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, Attention: Mr. Ryan Franklin, associate commissioner for educator leadership and quality, not more than 14 calendar days after notice of the proposal has been published in the Texas Register on November 3, 2017.

SUBCHAPTER A. GENERAL PROVISIONS

19 TAC §249.3

STATUTORY AUTHORITY. The amendment is proposed under the Texas Education Code (TEC), §21.006, as amended by SB 7, 85th Texas Legislature, Regular Session, 2017, which requires superintendents or directors of school districts, districts of innovation, open-enrollment charter schools, regional education service centers, or shared services arrangements to report to the SBEC within seven business days of when the superintendent or director knows that an educator has a criminal record or has been terminated or resigned when there is evidence that the educator has committed certain misconduct; which requires principals to report to superintendents or directors within seven business days of an educator's termination or resignation when there is evidence that the educator has committed certain misconduct or knew about an educator's criminal record; which gives the SBEC authority to sanction certified educators who fail to fulfill the reporting requirements timely, including administrative penalties of $500-$10,000; which gives the SBEC authority to revoke the certificate of an administrator who employs an applicant in a certified position at a school despite knowing the educator has been adjudicated for or convicted of having an inappropriate relationship with a minor; and which requires the SBEC to adopt rules to require the reporting of educator misconduct and to sanction educators who fail to report; TEC, §21.007, which requires the SBEC to propose rules that provide for a procedure for placing a public notice of alleged misconduct on an educator's certificate immediately when the educator is alleged to have committed misconduct that presents a risk to the health, safety, or welfare of a student or minor, and allows the SBEC to determine what types of misconduct would present such a risk; TEC, §21.009, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a student or minor; TEC, §21.031(a), which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators; TEC, §21.035, which states that Texas Education Agency (TEA) staff provides administrative functions and services for SBEC and gives SBEC the authority to delegate to either the commissioner of education or to TEA staff the authority to settle or otherwise informally dispose of contested cases involving educator certification; TEC, §21.041, which authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings; TEC, §21.044, which requires the SBEC to propose rules establishing training requirements a person must accomplish to obtain a certificate; TEC, §21.058, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which requires SBEC to revoke an educator's certificate if the educator is required to register as a sex offender or is convicted of certain felony offenses and the victim of the offense was under 18 years old; TEC, §21.0581, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which allows the SBEC to suspend, revoke, or refuse to issue an educator's certificate if the person has assisted another person in obtaining employment at a school district or charter school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law; TEC, §21.060, which sets out crimes that relate to the education profession and authorizes the SBEC to sanction or refuse to issue a certificate to any person who has been convicted of one of these offenses; TEC, §§21.105(c), 21.160(c), and 21.210(c), which give SBEC authority to sanction an educator who has a continuing, term, or probationary contract and who resigns without good cause; TEC, §22.085, which allows the SBEC to sanction educators who fail to fire or to refuse to hire an applicant when the educator knew or should have known from the background check that the employee had a criminal record reflecting certain offenses and requires a superintendent to certify to the commissioner of education that the school district is in compliance with this section; TEC, §22.087, which requires a superintendent to report to SBEC if the superintendent knows of information showing that an educator or an applicant for an educator certificate has criminal history that is not reflected in the criminal history information provided by the Texas Department of Public Safety in response to a background check; TEC, §57.491(g), which requires the SBEC to refuse to renew the certificate of any educator who is in default on student loan payments; Texas Government Code, §2001.058, which sets out the powers and duties of the State Office of Administrative Hearings and other state agencies with regard to contested case proceedings; and Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052, which give the SBEC the authority to automatically suspend, revoke, or disqualify a person from receiving an educator certificate if the person has been convicted of certain offenses.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code (TEC), §21.006, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017; §21.007; §21.009, as added by SB 7; §§21.031(a); 21.035; 21.041; 21.044; 21.058, as amended by SB 7; §21.0581, as added by SB 7; §§21.060; 21.105(c); 21.160(c); 21.210(c); 22.085; 22.087; and 57.491(g); Texas Government Code, §2001.058; Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052; and Texas Penal Code, §21.12(a), as amended by SB 7.

§249.3.Definitions.

The following words, terms, and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--Includes the following acts or omissions:

(A) mental or emotional injury to a student or minor that results in an observable and material impairment in the student's or minor's development, learning, or psychological functioning;

(B) causing or permitting a student or minor to be in a situation in which the student or minor sustains a mental or emotional injury that results in an observable and material impairment in the student's or minor's development, learning, or psychological functioning;

(C) physical injury that results in substantial harm to a student or minor, or the genuine threat of substantial harm from physical injury to the student or minor, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline; or

(D) sexual conduct harmful to a student's or minor's mental, emotional, or physical welfare.

(2) Administrative denial--A decision or action by the Texas Education Agency staff, acting on behalf of the State Board for Educator Certification, to deny certification (including certification following revocation, cancellation, or surrender of a previously issued certificate), renewal of certification, or reinstatement of a previously suspended certificate based on the withholding or voiding of certification test scores; the invalidation of a certification test registration; evidence of a lack of good moral character; or evidence of improper conduct.

(3) Administrative law judge--A person appointed by the chief judge of the State Office of Administrative Hearings under the Texas Government Code, Chapter 2003.

(4) Answer--The responsive pleading filed in reply to factual and legal issues raised in a petition.

(5) Applicant--A party seeking issuance, renewal, or reinstatement of a certificate from the Texas Education Agency staff or the State Board for Educator Certification.

(6) Cancellation--The invalidation of an erroneously issued certificate.

(7) Certificate--The whole or part of any educator credential, license, or permit issued under the Texas Education Code, Chapter 21, Subchapter B. The official certificate is the record of the certificate as maintained on the Texas Education Agency's website.

(8) Certificate holder--A person who holds an educator certificate issued under the Texas Education Code, Chapter 21, Subchapter B.

(9) Chair--The presiding officer of the State Board for Educator Certification, elected pursuant to the Texas Education Code, §21.036, or other person designated by the chair to act in his or her absence or inability to serve.

(10) Chief judge--The chief administrative law judge of the State Office of Administrative Hearings.

(11) Code of Ethics--The Educators' Code of Ethics codified in Chapter 247 of this title (relating to the Educators' Code of Ethics).

(12) Complaint--A written statement submitted to the Texas Education Agency staff that contains essential facts alleging improper conduct by an educator, applicant, or examinee, the complainant's verifiable contact information, including full name, complete address, and phone number, which provides grounds for sanctions.

(13) Contested case--A proceeding under this chapter in which the legal rights, duties, and privileges related to a party's educator certificate are to be determined by the State Board for Educator Certification and/or the State Office of Administrative Hearings commencing when a petition is properly served under this chapter.

(14) Conviction--An adjudication of guilt for a criminal offense. The term does not include the imposition of deferred adjudication for which the judge has not proceeded to an adjudication of guilt.

(15) Deferred adjudication--The resolution of a criminal charge, based on a defendant's plea to the offense of guilty or nolo contendere, which results in the suspension of adjudication of the defendant's guilt and the imposition of conditions such as community supervision or restitution, and, upon successful completion of those conditions, the dismissal of the criminal case. In a contested case under this chapter, the defendant's acceptance of deferred adjudication in a criminal case may be considered as provided by the Texas Occupations Code, §53.021.

(16) Disciplinary proceedings--Any matter arising under this chapter or Chapter 247 of this title (relating to the Educators' Code of Ethics) that results in a final order or finding issued by the Texas Education Agency staff, the State Office of Administrative Hearings, or the State Board for Educator Certification relating to the legal rights, duties, privileges, and status of a party's educator certificate.

(17) Educator--A person who is required to hold a certificate issued under the Texas Education Code, Chapter 21, Subchapter B.

(18) Effective date--The date the decision or action taken by the State Board for Educator Certification or the Texas Education Agency staff becomes final under the appropriate legal authority.

(19) Endanger--Exposure of a student or minor to unjustified risk of injury or to injury that jeopardizes the physical health or safety of the student or minor without regard to whether there has been an actual injury to the student or minor.

(20) Examinee--A person who registers to take or who takes any examination required by the State Board for Educator Certification for admission to an educator preparation program or to obtain an educator certificate.

(21) Expired--No longer valid because a specific period or term of validity of a certificate has ended; an expired certificate is not subject to renewal or revalidation and a new certificate must be issued.

(22) Filing--Any written petition, answer, motion, response, other written instrument, or item appropriately filed under this chapter with the Texas Education Agency staff, the State Board for Educator Certification, or the State Office of Administrative Hearings.

(23) Good moral character--The virtues of a person as evidenced by patterns of personal, academic, and occupational behaviors that, in the judgment of the State Board for Educator Certification, indicate honesty, accountability, trustworthiness, reliability, and integrity. Lack of good moral character may be evidenced by the commission of crimes relating directly to the duties and responsibilities of the education profession as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal History [Convictions] for a Certificate under Texas Occupations Code, Chapter 53, and Texas Education Code, Chapter 21), or by the commission of acts involving moral turpitude, but conduct that evidences a lack of good moral character is not necessarily limited to such crimes or acts.

(24) Inactive--Lacking current effectiveness. An inactive certificate does not currently entitle the certificate holder to work as a professional educator in Texas public schools. An inactive certificate is distinguished from a certificate that is void or expired by the fact that it can be reactivated by satisfying the condition or conditions that caused it to be placed in inactive status (failure to renew, failure to submit fingerprint information, or payment of fees), subject to any other certification requirements applicable to active certificates.

(25) Inappropriate relationship--A violation of Texas Penal Code, §21.12(a); a sexual or romantic relationship with a student or minor; or solicitation of a sexual or romantic relationship with a student or minor.

(26) [(25)] Informal conference--An informal meeting between the Texas Education Agency staff and an educator, applicant, or examinee; such a meeting may be used to give the person an opportunity to show compliance with all requirements of law for the granting or retention of a certificate or test score pursuant to Texas Government Code, §2001.054(c).

(27) [(26)] Invalid--Rendered void; lacking legal or administrative efficacy.

(28) [(27)] Law--The United States and Texas Constitutions, state and federal statutes, regulations, rules, relevant case law, and decisions and orders of the State Board for Educator Certification and the commissioner of education.

(29) [(28)] Mail--Certified United States mail, return receipt requested, unless otherwise provided by this chapter.

(30) [(29)] Majority--A majority of the voting members of the State Board for Educator Certification who are present and voting on the issue at the time the vote is recorded.

(31) [(30)] Moral turpitude--Improper conduct, including, but not limited to, the following: dishonesty; fraud; deceit; theft; misrepresentation; deliberate violence; base, vile, or depraved acts that are intended to arouse or to gratify the sexual desire of the actor; drug or alcohol related offenses as described in §249.16(b) of this title (relating to Eligibility of Persons with Criminal History [Convictions] for a Certificate under Texas Occupations Code, Chapter 53, and Texas Education Code, Chapter 21); or acts constituting abuse or neglect under the Texas Family Code, §261.001.

(32) [(31)] Neglect--The placing or leaving of a student or minor in a situation where the student or minor would be exposed to a substantial risk of physical or mental harm.

(33) [(32)] Party--Each person named or admitted to participate in a contested case under this chapter.

(34) [(33)] Permanent revocation--Revocation without the opportunity to reapply for a new certificate.

(35) [(34)] Person--Any individual, representative, corporation, or other entity, including the following: an educator, applicant, or examinee; the Texas Education Agency staff; or the State Board for Educator Certification, the State Office of Administrative Hearings, or any other agency or instrumentality of federal, state, or local government.

(36) [(35)] Petition--The written pleading served by the petitioner in a contested case under this chapter.

(37) [(36)] Petitioner--The party seeking relief, requesting a contested case hearing under this chapter, and having the burden of proof by a preponderance of the evidence in any contested case hearing or proceeding under this chapter.

(38) [(37)] Physical mistreatment--Any act of unreasonable or offensive touching that would be offensive to a reasonable person in a similar circumstance. It is an affirmative defense that any unreasonable or offensive touching was justified under the circumstances, using a reasonable person standard.

(39) [(38)] Presiding officer--The chair or acting chair of the State Board for Educator Certification.

(40) [(39)] Proposal for decision--A recommended decision issued by an administrative law judge in accordance with the Texas Government Code, §2001.062.

(41) [(40)] Quorum--A majority of the 14 members appointed to and serving on the State Board for Educator Certification (SBEC) pursuant to the Texas Education Code, §21.033; eight SBEC members, including both voting and non-voting members, as specified in the SBEC Operating Policies and Procedures.

(42) [(41)] Recklessly--An educator acts recklessly, or is reckless, with respect to circumstances surrounding his or her conduct or the results of his or her conduct when he or she is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.

(43) [(42)] Reinstatement--The restoration of a suspended certificate to valid status by the State Board for Educator Certification.

(44) [(43)] Reported criminal history--Information concerning any formal criminal justice system charges and dispositions. The term includes, without limitation, arrests, detentions, indictments, criminal informations, convictions, deferred adjudications, and probations in any state or federal jurisdiction.

(45) [(44)] Representative--A person representing an educator, applicant, or examinee in matters arising under this chapter; in a contested case proceeding before the State Office of Administrative Hearings (SOAH), an attorney licensed to practice law in the State of Texas or other person authorized as a party representative under SOAH rules.

(46) [(45)] Reprimand--The State Board for Educator Certification's formal censuring of a certificate holder.

(A) An "inscribed reprimand" is a formal, published censure appearing on the face of the educator's virtual certificate.

(B) A "non-inscribed reprimand" is a formal, unpublished censure that does not appear on the face of the educator's virtual certificate.

(47) [(46)] Respondent--The party who contests factual or legal issues or both raised in a petition; the party filing an answer in response to a petition.

(48) [(47)] Restricted--The condition of an educator certificate that has had limitations or conditions on its use imposed by State Board for Educator Certification order.

(49) [(48)] Revocation--A sanction imposed by the State Board for Educator Certification invalidating an educator's certificate.

(50) [(49)] Sanction--A disciplinary action by the State Board for Educator Certification, including a restriction, reprimand, suspension, revocation of a certificate, or a surrender in lieu of disciplinary action.

(51) [(50)] Solicitation of a romantic relationship--Deliberate or repeated acts that can be reasonably interpreted as the solicitation by an educator of a relationship with a student that is romantic in nature. A romantic relationship is often characterized by a strong emotional or sexual attachment and/or by patterns of exclusivity, but does not include appropriate educator-student relationships that arise out of legitimate contexts such as familial connections or longtime acquaintance. The following acts, considered in context, may constitute prima facie evidence of the solicitation by an educator of a romantic relationship with a student:

(A) behavior, gestures, expressions, or communications with a student that are unrelated to the educator's job duties and evidence a romantic intent or interest in the student, including statements of love, affection, or attraction. Factors that may be considered in determining the romantic intent of such communications or behavior, include, without limitation:

(i) the nature of the communications;

(ii) the timing of the communications;

(iii) the extent of the communications;

(iv) whether the communications were made openly or secretly;

(v) the extent that the educator attempts to conceal the communications;

(vi) if the educator claims to be counseling a student, the State Board for Educator Certification may consider whether the educator's job duties included counseling, whether the educator reported the subject of the counseling to the student's guardians or to the appropriate school personnel, or, in the case of alleged abuse or neglect, whether the educator reported the abuse or neglect to the appropriate authorities; and

(vii) any other evidence tending to show the context of the communications between educator and student;

(B) making inappropriate comments about a student's body, creating or transmitting sexually suggestive photographs or images, or encouraging the student to transmit sexually suggestive photographs or images;

(C) making sexually demeaning comments to a student;

(D) making comments about a student's potential sexual performance;

(E) requesting details of a student's sexual history;

(F) requesting a date, sexual contact, or any activity intended for the sexual gratification of the educator;

(G) engaging in conversations regarding the sexual problems, preferences, or fantasies of either party;

(H) inappropriate hugging, kissing, or excessive touching;

(I) providing the student with drugs or alcohol;

(J) suggestions that a romantic relationship is desired after the student graduates, including post-graduation plans for dating or marriage; and

(K) any other acts tending to show that the educator solicited a romantic relationship with a student.

(52) [(51)] State assessment testing violation--Conduct that violates the security or confidential integrity of any test or assessment required by the Texas Education Code, Chapter 39, Subchapter B, or conduct that is a departure from the test administration procedures established by the commissioner of education in Chapter 101 of this title (relating to Assessment). The term does not include benchmark tests or other locally required assessments.

(53) [(52)] State Board for Educator Certification--The State Board for Educator Certification acting through its voting members in a decision-making capacity.

(54) [(53)] State Board for Educator Certification member(s)--One or more of the members of the State Board for Educator Certification, appointed and qualified under the Texas Education Code, §21.033.

(55) [(54)] Student--A person enrolled in a primary or secondary school, whether public, private, or charter, regardless of the person's age, or a person 18 years of age or younger who is eligible to be enrolled in a primary or secondary school, whether public, private, or charter.

(56) [(55)] Surrender--An educator's voluntary relinquishment of a particular certificate in lieu of disciplinary proceedings under this chapter resulting in an order of revocation of the certificate.

(57) [(56)] Suspension--A sanction imposed by the State Board for Educator Certification (SBEC) temporarily invalidating a particular certificate until reinstated by the SBEC.

(58) [(57)] Test administration rules or procedures--Rules and procedures governing professional examinations administered by the State Board for Educator Certification through the Texas Education Agency staff and a test contractor, including policies, regulations, and procedures set out in a test registration bulletin.

(59) [(58)] Texas Education Agency staff--Staff of the Texas Education Agency assigned by the commissioner of education to perform the State Board for Educator Certification's administrative functions and services.

(60) [(59)] Unworthy to instruct or to supervise the youth of this state--Absence of those moral, mental, and psychological qualities that are required to enable an educator to render the service essential to the accomplishment of the goals and mission of the State Board for Educator Certification policy and Chapter 247 of this title (relating to Educators' Code of Ethics). Unworthy to instruct serves as a basis for sanctions under §249.15(b)(2) of this title (relating to Disciplinary Action by State Board for Educator Certification) and for administrative denial under §249.12(b) of this title (relating to Administrative Denial; Appeal). A determination that a person is unworthy to instruct does not require a criminal conviction.

(61) [(60)] Virtual certificate--The official record of a person's certificate status as maintained on the Texas Education Agency's website.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704275

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER B. ENFORCEMENT ACTIONS AND GUIDELINES

19 TAC §§249.12, 249.14, 249.15, 249.17

STATUTORY AUTHORITY. The amendments are proposed under the Texas Education Code (TEC), §21.006, as amended by SB 7, 85th Texas Legislature, Regular Session, 2017, which requires superintendents or directors of school districts, districts of innovation, open-enrollment charter schools, regional education service centers, or shared services arrangements to report to the SBEC within seven business days of when the superintendent or director knows that an educator has a criminal record or has been terminated or resigned when there is evidence that the educator has committed certain misconduct; which requires principals to report to superintendents or directors within seven business days of an educator's termination or resignation when there is evidence that the educator has committed certain misconduct or knew about an educator's criminal record; which gives the SBEC authority to sanction certified educators who fail to fulfill the reporting requirements timely, including administrative penalties of $500-$10,000; which gives the SBEC authority to revoke the certificate of an administrator who employs an applicant in a certified position at a school despite knowing the educator has been adjudicated for or convicted of having an inappropriate relationship with a minor; and which requires the SBEC to adopt rules to require the reporting of educator misconduct and to sanction educators who fail to report; TEC, §21.007, which requires the SBEC to propose rules that provide for a procedure for placing a public notice of alleged misconduct on an educator's certificate immediately when the educator is alleged to have committed misconduct that presents a risk to the health, safety, or welfare of a student or minor, and allows the SBEC to determine what types of misconduct would present such a risk; TEC, §21.009, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a student or minor; TEC, §21.031(a), which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators; TEC, §21.035, which states that Texas Education Agency (TEA) staff provides administrative functions and services for SBEC and gives SBEC the authority to delegate to either the commissioner of education or to TEA staff the authority to settle or otherwise informally dispose of contested cases involving educator certification; TEC, §21.041, which authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings; TEC, §21.044, which requires the SBEC to propose rules establishing training requirements a person must accomplish to obtain a certificate; TEC, §21.058, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which requires SBEC to revoke an educator's certificate if the educator is required to register as a sex offender or is convicted of certain felony offenses and the victim of the offense was under 18 years old; TEC, §21.0581, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which allows the SBEC to suspend, revoke, or refuse to issue an educator's certificate if the person has assisted another person in obtaining employment at a school district or charter school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law; TEC, §21.060, which sets out crimes that relate to the education profession and authorizes the SBEC to sanction or refuse to issue a certificate to any person who has been convicted of one of these offenses; TEC, §§21.105(c), 21.160(c), and 21.210(c), which give SBEC authority to sanction an educator who has a continuing, term, or probationary contract and who resigns without good cause; TEC, §22.085, which allows the SBEC to sanction educators who fail to fire or to refuse to hire an applicant when the educator knew or should have known from the background check that the employee had a criminal record reflecting certain offenses and requires a superintendent to certify to the commissioner of education that the school district is in compliance with this section; TEC, §22.087, which requires a superintendent to report to SBEC if the superintendent knows of information showing that an educator or an applicant for an educator certificate has criminal history that is not reflected in the criminal history information provided by the Texas Department of Public Safety in response to a background check; TEC, §57.491(g), which requires the SBEC to refuse to renew the certificate of any educator who is in default on student loan payments; Texas Government Code, §2001.058, which sets out the powers and duties of the State Office of Administrative Hearings and other state agencies with regard to contested case proceedings; and Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052, which give the SBEC the authority to automatically suspend, revoke, or disqualify a person from receiving an educator certificate if the person has been convicted of certain offenses.

CROSS REFERENCE TO STATUTE. The amendments implement the Texas Education Code (TEC), §21.006, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017; §21.007; §21.009, as added by SB 7; §§21.031(a); 21.035; 21.041; 21.044; 21.058, as amended by SB 7; §21.0581, as added by SB 7; §§21.060; 21.105(c); 21.160(c); 21.210(c); 22.085; 22.087; and 57.491(g); Texas Government Code, §2001.058; Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052; and Texas Penal Code, §21.12(a), as amended by SB 7.

§249.12.Administrative Denial; Appeal.

(a) This section applies to administrative denials, as that term is defined in §249.3 of this title (relating to Definitions). This section does not apply to the denial of an application for a certificate that has been permanently revoked, and it does not apply to the failure to issue a certificate because specific certification requirements have not been met.

(b) The Texas Education Agency (TEA) staff may administratively deny any of the matters set out in subsection (a) of this section based on satisfactory evidence that:

(1) the person filed a fraudulent application;

(2) the person assisted another person in obtaining permanent employment at a school district or open-enrollment charter school, other than by the routine transmission of administrative or personnel files when the person knew that the other person had previously engaged in an inappropriate relationship with a minor or student in violation of the law;

(3) the person has committed an act that would make them subject to required revocation under the Texas Education Code, §21.058;

(4) the person has committed an act that would make them subject to mandatory permanent revocation or denial under §249.17(i) of this title (relating to Decision-Making Guidelines);

(5) [(2)] the person has engaged in conduct or committed a crime or an offense that:

(A) demonstrates that the person lacks good moral character;

(B) demonstrates that the person is unworthy to instruct or to supervise the youth of this state; or

(C) constitutes the elements of a crime or offense relating directly to the duties and responsibilities of the education profession; or

(6) [(3)] the person failed to comply with the terms or conditions of an order issued by or on behalf of the State Board for Educator Certification or the TEA staff.

(c) The TEA staff shall provide written notice of the denial and the factual and legal reasons for it to the person whose application or request has been administratively denied. The notice shall be given by registered or certified mail to the address the person has provided in the application or request that is being denied. The person may attempt to show compliance with legal requirements by written submission or by requesting an informal conference, and/or may appeal and request a State Office of Administrative Hearings (SOAH) hearing as hereafter provided. The 30-day deadline to appeal and request a hearing is not tolled during any attempts to show cause.

(d) The appeal and request for a SOAH hearing of an administrative denial shall be in the form of a petition that complies in content and form with §249.26 of this title (relating to Petition) and 1 Texas Administrative Code, Part 7, §155.301 (relating to Required Form of Pleadings). In order to be referred to the SOAH for a contested case hearing, an appeal petition must be filed with the TEA staff within 30 calendar days after the person received or is deemed to have received written notice of the administrative denial. Unless otherwise proved by the person, the notice shall be deemed to have been received by the examinee no later than five calendar days after mailing to the most recent address provided by the person. The TEA staff may dismiss an appeal that is not timely filed without further action.

(e) The TEA staff shall send an answer to the petition to the person appealing an administrative denial and shall refer the petition and answer to the SOAH for a contested case hearing.

§249.14.Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition.

(a) The Texas Education Agency (TEA) staff may obtain and investigate information concerning alleged improper conduct by an educator, applicant, examinee, or other person subject to this chapter that would warrant the State Board for Educator Certification (SBEC) denying relief to or taking disciplinary action against the person or certificate.

(b) Complaints against an educator, applicant, or examinee must be filed in writing.

(c) The TEA staff may also obtain and act on other information providing grounds for investigation and possible action under this chapter.

(d) A person who serves as the superintendent of a school district or district of innovation or the director of an open-enrollment charter school, private school, regional education service center, or shared services arrangement may notify the SBEC of any educator misconduct that the person believes in good faith may be subject to sanctions under this chapter and/or Chapter 247 of this title (relating to Educators' Code of Ethics). However, under any of the following circumstances, a person who serves in such a position shall promptly notify the SBEC in writing by filing a report with the TEA staff within seven business [calendar] days of the date the person either receives a report from a principal under subsection (e) of this section or knew of those circumstances, and may be subject to sanctions for failure to do so, pursuant to §249.15(b)(4) of this title (relating to Disciplinary Action by State Board for Educator Certification):

(1) that an applicant for or a holder of a certificate has a reported criminal history, which the superintendent or director obtained information by a means other than the criminal history clearinghouse established under Texas Government Code, §411.0845;

(2) that a certificate holder was terminated from employment and there is [based on] evidence that he or she committed any of the following acts:

(A) sexually or physically abused a student or minor or engaged in any other illegal conduct with a student or minor;

[(B) was involved in a romantic relationship with or solicited or engaged in sexual contact with a student or minor;]

(B) [(C)] possessed, transferred, sold, or distributed a controlled substance;

(C) [(D)] illegally transferred, appropriated, or expended school property or funds;

(D) [(E)] attempted by fraudulent or unauthorized means to obtain or to alter any certificate or permit that would entitle the individual to be employed in a position requiring such certificate or permit or to receive additional compensation associated with a position;

(E) [(F)] committed a crime, any part of such crime having occurred on school property or at a school-sponsored event; or

(F) [(G)] solicited or engaged in sexual conduct or a romantic relationship with a student or minor;

(3) that a certificate holder has submitted a notice of resignation and that there exists evidence that he or she committed one of the acts specified in paragraph (2) of this subsection.

(A) Before accepting an employee's resignation that, under this paragraph, requires a person to notify the SBEC by filing a report with the TEA staff, the person shall inform the certificate holder in writing that such a report will be filed and that sanctions against his or her certificate may result as a consequence.

(B) A person required to comply with this paragraph shall notify the governing body of the employing school district before filing the report with the TEA staff.

(C) A superintendent or director of a school district shall complete an investigation of an educator if there is reasonable cause to believe the educator may have engaged in misconduct described in paragraph (2)(A) of this subsection despite the educator's resignation from district employment before completion of the investigation; or

(4) any other circumstances requiring a report under the Texas Education Code (TEC), §21.006.

(e) A person who serves as a principal in a school district, a district of innovation, or an open-enrollment charter school must notify the superintendent or director of the school district, district of innovation, or charter school and may be subject to sanctions for failure to do so, pursuant to §249.15(b)(4) of this title (relating to Disciplinary Action by State Board for Educator Certification), no later than seven business days after:

(1) an educator's termination or resignation following an alleged incident of misconduct involving one of the acts described in subsection (d)(2) of this section; or

(2) the principal knew about an educator's reported criminal history.

(f) [(e)] Pursuant to the TEC, §21.006 (b-2), (c), [and] (h), and (i), a report filed under subsections [subsection] (d) and (e) of this section must include:

(1) the name or names of any student or minor who is the victim of abuse or unlawful conduct by an educator; and [shall, at a minimum, describe in detail]

(2) the factual circumstances requiring the report and [identify] the subject of the report by providing the following available information:

(A) name and any aliases; certificate number, if any, or social security number;

(B) last known mailing address and home and daytime phone numbers;

(C) all available contact information for any alleged victim or victims; [and]

(D) name or names and any available contact information of any relevant witnesses to the circumstances requiring the report;[.]

(E) current employment status of the subject, including any information about proposed termination, notice of resignation, or pending employment actions; and

(F) involvement by a law enforcement or other agency, including the name of the agency.

(g) Pursuant to the Family Educational Rights and Privacy Act (FERPA), 20 United States Code, §1232g(a)(4), and the federal regulations interpreting it at 34 Code of Federal Regulations, §99.3, education records that are protected by FERPA must be records that are directly related to a student, and the term "education records" does not include records that relate to a school employee in his or her capacity as a school employee.

(h) A person who is required to file a report under subsections [subsection] (d) and (e) of this section but fails to do so timely is subject to sanctions under this chapter.

(i) [(f)] If a school district board of trustees learns of a failure by the superintendent of the district or a district principal to provide a notice required under the Texas Code of Criminal Procedure (TCCP), §15.27(a), (a-1), or (b), the board of trustees shall report the failure to the SBEC. If the governing body of a private primary or secondary school learns of a failure by the principal of the school to provide a notice required under the TCCP, §15.27(e), and the principal holds a certificate issued under the TEC, Chapter 21, Subchapter B, the governing body shall report the failure to the SBEC.

(j) [(g)] The TEA staff shall not pursue sanctions against an educator who is alleged to have abandoned his or her TEC, Chapter 21, contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c), subject to the limitations imposed by the TEC, §21.4021(g), unless the board of trustees of the employing school district:

(1) submits a written complaint to the TEA staff within 30 calendar days after the effective date of the educator's separation from employment from the school district. For purposes of this section, unless the school district and the educator have a written agreement to the contrary, the effective date of separation from employment is the first day that, without district permission, the educator fails to appear for work under the contract;

(2) renders a finding that good cause did not exist under the TEC, §§21.105(c)(2), 21.160(c)(2), or 21.210(c)(2). This finding constitutes prima facie evidence of the educator's lack of good cause, but is not a conclusive determination; and

(3) submits the following required attachments to the written complaint:

(A) the educator's resignation letter, if any;

(B) the agreement with the educator regarding the effective date of separation from employment, if any;

(C) the educator's contract; and

(D) school board meeting minutes indicating a finding of "no good cause" (if the board does not meet within 30 calendar days of the educator's separation from employment, the minutes may be submitted within 10 calendar days after the next board meeting).

(k) [(h)] To efficiently administer and implement the SBEC's purpose under this chapter and the TEC, the TEA staff may set priorities for the investigation of complaints based on the severity and immediacy of the allegations and the likelihood of harm posed by the subject of the investigation. All cases accepted for investigation shall be assigned one of the following priorities.

(1) Priority 1: conduct that may result in the placement of an investigative notice pursuant to the TEC, §21.007, and subsection (l) [(i)] of this section because it presents a risk to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague, including, but not limited to, the following:

(A) any conduct constituting a felony criminal offense;

(B) indecent exposure;

(C) public lewdness;

(D) child abuse and/or neglect;

(E) possession of a weapon on school property;

(F) drug offenses occurring on school property;

(G) sale to or making alcohol or other drugs available to a student or minor;

(H) sale, distribution, or display of harmful material to a student or minor;

(I) certificate fraud;

(J) state assessment testing violations;

(K) deadly conduct; and

(L) conduct that involves inappropriate communication with a student as described in §247.2(3)(I) of this title (relating to Code of Ethics and Standard Practices for Texas Educators), inappropriate professional educator-student relationships and boundaries, or otherwise soliciting or engaging in sexual conduct or a romantic relationship with a student or minor.

(2) Priority 2: any sanctionable conduct that is not Priority 1 conduct under paragraph (1) of this subsection. An investigative notice will not be placed on an educator's certification records on the basis of an allegation of Priority 2 conduct. The TEA staff may change a case's priority at any time based on information received. Priority 2 conduct includes, but is not limited to, the following:

(A) any conduct constituting a misdemeanor criminal offense or testing violation that is not Priority 1 conduct;

(B) contract abandonment; and

(C) code of ethics violations that do not constitute Priority 1 conduct.

(l) [(i)] After accepting a case for investigation, if the alleged conduct indicates a risk to the health, safety, or welfare of a student or minor, as described in subsection (k)[(h)](1) of this section, the TEA staff shall immediately place an investigative notice on the certificate holder's certification records stating that the certificate holder is currently under investigation. The placement of such an investigative notice must follow the procedures set forth in subsection (m)[(j)](1) of this section. After accepting a case for investigation, if the alleged conduct indicates a risk to the health, safety, or welfare of a parent of a student, fellow employee, or professional colleague, as described in subsection (k)[(h)](1) of this section, the TEA staff may place an investigative notice on the certificate holder's certification records stating that the certificate holder is currently under investigation. The placement of an investigative notice must follow the procedures set forth in subsection (m)[(j)](2) of this section.

(m) [(j)] The following procedures must be followed for placing an investigative notice on the educator's certification records.

(1) At the time of placing an investigative notice on an educator's certification records for alleged conduct that indicates a risk to the health, safety, or welfare of a student or minor, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.

(A) Within ten calendar days of placing an investigative notice on the educator's certification records, the letter notifying the certificate holder of the investigation shall be mailed to the address provided to the TEA staff pursuant to the requirements set forth in §230.91 of this title (relating to Procedures in General).

(B) The letter notifying the certificate holder of the investigation shall include a statement of the alleged conduct, which forms the basis for the investigative notice, and shall provide the certificate holder the opportunity to show cause within ten calendar days why the notice should be removed from the educator's certification records.

(2) Prior to placing an investigative notice on an educator's certification records for alleged conduct that indicates a risk to the health, safety, or welfare of a parent of a student, fellow employee, or professional colleague, as described in subsection (k)[(h)](1) of this section, the TEA staff shall serve the certificate holder with a letter informing the educator of the investigation and the basis of the complaint.

(A) At least ten calendar days before placing an investigative notice on the educator's certification records, the letter notifying the certificate holder of the investigation shall be mailed to the address provided to the TEA staff pursuant to the requirements set forth in §230.91 of this title.

(B) The letter notifying the certificate holder of the investigation shall include a statement of the alleged conduct, which forms the basis for the investigative notice, and shall provide the certificate holder the opportunity to show cause within ten calendar days why the notice should not be placed on the educator's certification records.

(3) The TEA staff shall determine whether or not to remove or place an investigative notice on the educator's certification records, taking into account the educator's response, if any, to the letter notifying the certificate holder of the investigation.

(n) [(k)] An investigative notice is subject to the following time limits.

(1) An investigative notice may remain on the certification records of a certificate holder for a period not to exceed 240 calendar days.

(2) The TEA staff may toll this time limit if information is received indicating that there is a pending criminal or administrative matter related to the alleged act of misconduct that gives rise to the investigative notice. For purposes of this subsection, a criminal or administrative matter includes an audit by a state or federal agency, an arrest, an investigation, related litigation or other enforcement action brought by a state or federal administrative agency, or a prosecution by a criminal law enforcement agency. Upon receiving notice that the criminal or administrative matter has been resolved the tolling period shall end. As part of its procedure, the TEA staff will attempt to make bimonthly (once every two months) contact with the agency where a related matter is pending to determine whether the related matter has been closed or otherwise resolved.

(3) The TEA staff may toll this time limit if the matter is referred for a contested case hearing, upon agreement of the parties, or while the matter is pending action by the SBEC on a proposed agreed order.

(o) [(l)] The TEA staff shall remove an investigative notice from an educator's certification records:

(1) when a case's final disposition occurs within the time limits established in subsection (n) [(k)] of this section; or

(2) when the time limits for an investigative notice have been exceeded, if:

(A) the certificate holder has made a written demand to the TEA staff that the investigative notice be removed because the time limits have been exceeded; and

(B) the TEA staff has failed to refer the matter to the State Office of Administrative Hearings for a contested case hearing within 30 calendar days from the date of receipt of the written demand to remove the investigative notice.

(p) [(m)] Only the TEA staff may file a petition seeking sanctions under §249.15 of this title. Prior to filing a petition, the TEA staff shall mail to the certificate holder affected by written notice of the facts or conduct alleged to warrant the intended action and shall provide the certificate holder an opportunity to show compliance with all requirements of law.

§249.15.Disciplinary Action by State Board for Educator Certification.

(a) Pursuant to this chapter, the State Board for Educator Certification (SBEC) may take any of the following actions:

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

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

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

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

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

(6) impose an administrative penalty of $500-$10,000 on a superintendent or director who fails to file timely a report required under §249.14(d) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition) or on a principal who fails to timely notify a superintendent or director as required under §249.14(e) of this title under the circumstances and in the manner required by the Texas Education Code (TEC), §21.006.

(b) The SBEC may take any of the actions listed in subsection (a) of this section based on satisfactory evidence that:

(1) the person has conducted school or education activities in violation of law;

(2) the person is unworthy to instruct or to supervise the youth of this state;

(3) the person has violated a provision of the Educators' Code of Ethics;

(4) the person has failed to report or has hindered the reporting of child abuse pursuant to the Texas Family Code, §261.001, or has failed to notify the SBEC or the school superintendent or director under the circumstances and in the manner required by the TEC [Texas Education Code (TEC)], §21.006, and §249.14(d) - (f) [§249.14(d) and (e)] of this title [(relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition)];

(5) the person has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c);

(6) the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation;

(7) the person has failed to provide information required to be provided by §229.3 of this title (relating to Required Submissions of Information, Surveys, and Other Data);

(8) the person has violated the security or integrity of any assessment required by the TEC, Chapter 39, Subchapter B, as described in subsection (g) of this section or has committed an act that is a departure from the test administration procedures established by the commissioner of education in Chapter 101 of this title (relating to Assessment);

(9) the person has committed an act described in §249.14(h)(1) of this title, which constitutes sanctionable Priority 1 conduct, as follows:

(A) any conduct constituting a felony criminal offense;

(B) indecent exposure;

(C) public lewdness;

(D) child abuse and/or neglect;

(E) possession of a weapon on school property;

(F) drug offenses occurring on school property;

(G) sale to or making alcohol or other drugs available to a student or minor;

(H) sale, distribution, or display of harmful material to a student or minor;

(I) certificate fraud;

(J) state assessment testing violations;

(K) deadly conduct; or

(L) conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor;

(10) the person has committed an act that would constitute an offense (without regard to whether there has been a criminal conviction) that is considered to relate directly to the duties and responsibilities of the education profession, as described in §249.16(c) of this title (relating to Eligibility of Persons with Criminal History for a Certificate under Texas Occupations Code, Chapter 53, and Texas Education Code, Chapter 21). Such offenses indicate a threat to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague; interfere with the orderly, efficient, or safe operation of a school district, campus, or activity; or indicate impaired ability or misrepresentation of qualifications to perform the functions of an educator and include, but are not limited to:

(A) offenses involving moral turpitude;

(B) offenses involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor;

(C) offenses involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution, or conspiracy to transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481;

(D) offenses involving school property or funds;

(E) offenses involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator;

(F) offenses occurring wholly or in part on school property or at a school-sponsored activity; or

(G) felony offenses involving driving while intoxicated (DWI);

(11) the person has intentionally failed to comply with the reporting, notification, and confidentiality requirements specified in the Texas Code of Criminal Procedure, §15.27(a), relating to student arrests, detentions, and juvenile referrals for certain offenses;

(12) the person has failed to discharge an employee or to refuse to hire an applicant when the person knew that the employee or applicant had been adjudicated for or convicted of having an inappropriate relationship with a minor in accordance with the TEC, §21.009(e), or knew or should have known through a criminal history record information review that the employee or applicant had been convicted of an offense in accordance with the TEC, §22.085;

(13) the person is a superintendent of a school district or the chief operating officer of an open-enrollment charter school who falsely or inaccurately certified to the commissioner of education that the district or charter school had complied with the TEC, §22.085; or

(14) the person has failed to comply with an order or decision of the SBEC.

(c) The TEA staff may commence a contested case to take any of the actions listed in subsection (a) of this section by serving a petition to the certificate holder in accordance with this chapter describing the SBEC's intent to issue a sanction and specifying the legal and factual reasons for the sanction. The certificate holder shall have 30 calendar days to file an answer as provided in §249.27 of this title (relating to Answer).

(d) Upon the failure of the certificate holder to file a written answer as required by this chapter, the TEA staff may file a request for the issuance of a default judgment from the SBEC imposing the proposed sanction in accordance with §249.35 of this title (relating to Disposition Prior to Hearing; Default).

(e) If the certificate holder files a timely answer as provided in this section, the case will be referred to the State Office of Administrative Hearings (SOAH) for hearing in accordance with the SOAH rules; the Texas Government Code, Chapter 2001; and this chapter.

(f) The provisions of this section are not exclusive and do not preclude consideration of other grounds or measures available by law to the SBEC or the TEA staff, including student loan default or child support arrears. The SBEC may request the Office of the Attorney General to pursue available civil, equitable, or other legal remedies to enforce an order or decision of the SBEC under this chapter.

(g) The statewide assessment program as defined by the TEC, Chapter 39, Subchapter B, is a secure testing program.

(1) Procedures for maintaining security shall be specified in the appropriate test administration materials.

(2) Secure test materials must be accounted for before, during, and after each test administration. Only authorized personnel may have access to secure test materials.

(3) The contents of each test booklet and answer document are confidential in accordance with the Texas Government Code, Chapter 551, and the Family Educational Rights and Privacy Act of 1974. Individual student performance results are confidential as specified under the TEC, §39.030(b).

(4) Violation of security or confidential integrity of any test required by the TEC, Chapter 39, Subchapter B, shall be prohibited. A person who engages in conduct prohibited by this section may be subject to sanction of credentials, including any of the sanctions provided by subsection (a) of this section.

(5) Charter school test administrators are not required to be certified; however, any irregularity in the administration of any test required by the TEC, Chapter 39, Subchapter B, would cause the charter itself to come under review by the commissioner of education for possible sanctions or revocation, as provided under the TEC, §12.115(a)(4).

(6) Conduct that violates the security and confidential integrity of a test is evidenced by any departure from the test administration procedures established by the commissioner of education. Conduct of this nature may include, but is not limited to, the following acts and omissions:

(A) viewing a test before, during, or after an assessment unless specifically authorized to do so;

(B) duplicating secure examination materials;

(C) disclosing the contents of any portion of a secure test;

(D) providing, suggesting, or indicating to an examinee a response or answer to a secure test item or prompt;

(E) changing or altering a response or answer of an examinee to a secure test item or prompt;

(F) aiding or assisting an examinee with a response or answer to a secure test item or prompt;

(G) fraudulently exempting or preventing a student from the administration of a required state assessment;

(H) encouraging or assisting an individual to engage in the conduct described in paragraphs (1)-(7) of this subsection; or

(I) failing to report to an appropriate authority that an individual has engaged in conduct outlined in paragraphs (1)-(8) of this subsection.

(7) Any irregularities in test security or confidential integrity may also result in the invalidation of student results.

(8) The superintendent and campus principal of each school district and chief administrative officer of each charter school and any private school administering the tests as allowed under the TEC, §39.033, shall develop procedures to ensure the security and confidential integrity of the tests specified in the TEC, Chapter 39, Subchapter B, and shall be responsible for notifying the TEA in writing of conduct that violates the security or confidential integrity of a test administered under the TEC, Chapter 39, Subchapter B. A person who fails to report such conduct as required by this subsection may be subject to any of the sanctions provided by subsection (a) of this section.

§249.17.Decision-Making Guidelines.

(a) Purpose. The purpose of these guidelines is to achieve the following objectives:

(1) to provide a framework of analysis for the Texas Education Agency (TEA) staff, the presiding administrative law judge (ALJ), and the State Board for Educator Certification (SBEC) in considering matters under this chapter;

(2) to promote consistency in the exercise of sound discretion by the TEA staff, the presiding ALJ, and the SBEC in seeking, proposing, and making decisions under this chapter; and

(3) to provide guidance for the informal resolution of potentially contested matters.

(b) Construction and application. This section shall be construed and applied so as to preserve SBEC members' discretion in making final decisions under this chapter. This section shall be further construed and applied so as to be consistent with §249.5(b) of this title (relating to Purpose; Policy Governing Disciplinary Proceedings) and this chapter, the Texas Education Code (TEC), and other applicable law, including SBEC decisions and orders.

(c) Consideration. The following factors may be considered in seeking, proposing, or making a decision under this chapter:

(1) the seriousness of the violation;

(2) whether the misconduct was premeditated or intentional;

(3) attempted concealment of misconduct;

(4) prior misconduct and SBEC sanctions;

(5) the potential danger the conduct poses to the health and welfare of students;

(6) the effect of the prior conduct upon any victims of the conduct;

(7) whether sufficient time has passed and sufficient evidence is presented to demonstrate that the educator or applicant has been rehabilitated from the prior conduct;

(8) the effect of the conduct upon the educator's good moral character and ability to be a proper role model for students;

(9) whether the sanction will deter future violations; and

(10) any other relevant circumstances or facts.

(d) Contract abandonment.

(1) Good cause. The following factors may be considered good cause when an educator is reported to have abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c):

(A) serious illness or health condition of the educator or close family member of the educator;

(B) relocation to a new city as a result of change in employer of the educator's spouse or partner who resides with the educator; or

(C) significant change in the educator's family needs that requires the educator to relocate or to devote more time than allowed by current employment.

(2) Mitigating factors. The following factors may be considered in seeking, proposing, or making a decision under this chapter regarding an educator who has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c):

(A) educator gave written notice to school district 30 days or more in advance of the first day of instruction for which the educator will not be present;

(B) educator assisted school district in finding a replacement educator to fill the position;

(C) educator continued to work until the school district hired a replacement educator;

(D) educator assisted in training the replacement educator;

(E) educator showed good faith in communications and negotiations with school district; or

(F) educator provided lesson plans for classes following educator's resignation.

(3) Mandatory minimum sanction for contract abandonment. An educator subject to sanction, who has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c) in a case where the factors listed in paragraph (1) or (2) of this subsection do not apply, may not receive a sanction of less than:

(A) suspension for one year from the first day that, without district permission, the educator failed to appear for work under the contract, provided that the educator has not worked as an educator during that year and the case is resolved within that one year through an agreed final order; or

(B) suspension for one year from either the effective date of an agreed final order resolving the case or an agreed future date at the beginning of the following school year, if the educator has worked as an educator after abandoning the contract; or

(C) suspension for one year from the date that the SBEC adopts an order that becomes final following a default under §249.35 of this title (relating to Disposition Prior to Hearing; Default) or a contested case hearing at the State Office of Administrative Hearings (SOAH).

(e) Mandatory minimum sanction for felony-level conduct. An educator subject to sanction, who is court-ordered to complete a period of deferred adjudication or community supervision for a felony-level criminal offense under state or federal law, may not receive a sanction of less than:

(1) suspension for a period concurrent with the term of deferred adjudication or community supervision, if the case is resolved through an agreed final order prior to the educator completing deferred adjudication or community supervision and the educator has not been employed as an educator during the period of deferred adjudication or community supervision; or

(2) suspension beginning on the effective date of an agreed final order for a period extending beyond the end of the educator's deferred adjudication or community supervision but may be less than the initial court-ordered term of deferred adjudication or community supervision, if the case is resolved through an agreed final order prior to the educator completing deferred adjudication or community supervision and the educator has been employed as an educator during the period of deferred adjudication or community supervision; or

(3) suspension beginning on the effective date of an agreed final order for a period at least half as long as the initial court-ordered term of deferred adjudication or community supervision, if the case is resolved through an agreed final order after the educator has completed deferred adjudication or community supervision; or

(4) suspension for a period equal to the term of deferred adjudication or community supervision that the criminal court initially ordered but beginning from the date of the final board decision, if the case is resolved through a final board decision following a contested case hearing at the SOAH or a default under §249.35 of this title.

(f) Mandatory minimum sanction for misdemeanor-level conduct. If an educator is subject to sanction, and a court has ordered the educator to complete a period of deferred adjudication, community supervision, or pretrial diversion for a misdemeanor-level criminal offense under state or federal law, the educator may not receive a sanction of less than an inscribed reprimand.

(g) Mandatory minimum sanction for test security violation. An educator who intentionally manipulates the results or violates the security or confidential integrity of any test required by the TEC, Chapter 39, Subchapter B, may not receive a sanction of less than suspension for one year from the effective date of an agreed final order or a final board decision following a contested case hearing at the SOAH.

(h) Mandatory minimum sanction for drugs and alcohol on school campus. An educator who is subject to sanction because the educator has tested positive for drugs or alcohol while on school campus, was under the influence of drugs or alcohol on school campus, or was in possession of drugs or alcohol on school campus may not receive a sanction of less than a one-year suspension and required completion of a drug or alcohol treatment program.

(i) Mandatory permanent revocation or denial. Notwithstanding subsection (c) of this section, the SBEC shall permanently revoke the teaching certificate of any educator or permanently deny the application of any applicant if, after a contested case hearing or a default under §249.35 of this title, it is determined that the educator or applicant:

(1) engaged in any sexual contact or romantic relationship with a student or minor;

(2) solicited any sexual contact or romantic relationship with a student or minor;

(3) possessed or distributed child pornography;

(4) was registered as a sex offender;

(5) committed criminal homicide;

(6) transferred, sold, distributed, or conspired to possess, transfer, sell, or distribute any controlled substance, the possession of which would be at least a Class A misdemeanor under the Texas Health and Safety Code, Chapter 481, on school property;

(7) intentionally, knowingly, or recklessly causes bodily injury to a student or minor when the conduct of the educator or applicant is not immune from disciplinary proceedings by TEC, §22.0512; or

(8) committed any offense described in the TEC, §21.058.

(j) Mandatory minimum for failure to report. An educator subject to sanction, who fails to report educator misconduct under the circumstances and in the manner required by the TEC, §21.006, and §249.14(d) - (f) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition), when the case is resolved through an agreed final order, may not receive a sanction of less than:

(1) an inscribed reprimand and a $5,000 administrative penalty for a superintendent or director who fails to file timely a report to the SBEC; or

(2) an inscribed reprimand and a $500 administrative penalty for a principal who fails to timely notify a superintendent or director.

(k) [(j)] Sanctioned misconduct in another state. The findings of fact contained in final orders from any other state jurisdiction may provide the factual basis for SBEC disciplinary action. If the underlying conduct for the administrative sanction of an educator's certificate or license issued in another state is a violation of SBEC rules, the SBEC may initiate a disciplinary action regarding the educator's Texas educator certificate and impose a sanction as provided under this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704276

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497


SUBCHAPTER D. HEARING PROCEDURES

19 TAC §249.35

STATUTORY AUTHORITY. The amendment is proposed under the Texas Education Code (TEC), §21.006, as amended by SB 7, 85th Texas Legislature, Regular Session, 2017, which requires superintendents or directors of school districts, districts of innovation, open-enrollment charter schools, regional education service centers, or shared services arrangements to report to the SBEC within seven business days of when the superintendent or director knows that an educator has a criminal record or has been terminated or resigned when there is evidence that the educator has committed certain misconduct; which requires principals to report to superintendents or directors within seven business days of an educator's termination or resignation when there is evidence that the educator has committed certain misconduct or knew about an educator's criminal record; which gives the SBEC authority to sanction certified educators who fail to fulfill the reporting requirements timely, including administrative penalties of $500-$10,000; which gives the SBEC authority to revoke the certificate of an administrator who employs an applicant in a certified position at a school despite knowing the educator has been adjudicated for or convicted of having an inappropriate relationship with a minor; and which requires the SBEC to adopt rules to require the reporting of educator misconduct and to sanction educators who fail to report; TEC, §21.007, which requires the SBEC to propose rules that provide for a procedure for placing a public notice of alleged misconduct on an educator's certificate immediately when the educator is alleged to have committed misconduct that presents a risk to the health, safety, or welfare of a student or minor, and allows the SBEC to determine what types of misconduct would present such a risk; TEC, §21.009, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which states that the SBEC may revoke the certificate of an administrator if the board determines it is reasonable to believe that the administrator employed an applicant despite being aware that the applicant had been adjudicated for or convicted of having an inappropriate relationship with a student or minor; TEC, §21.031(a), which charges the SBEC with regulating and overseeing all aspects of the certification, continuing education, and standards of conduct for public school educators; TEC, §21.035, which states that Texas Education Agency (TEA) staff provides administrative functions and services for SBEC and gives SBEC the authority to delegate to either the commissioner of education or to TEA staff the authority to settle or otherwise informally dispose of contested cases involving educator certification; TEC, §21.041, which authorizes the SBEC to adopt rules as necessary to regulate educators, administer statutory requirements, and provide for educator disciplinary proceedings; TEC, §21.044, which requires the SBEC to propose rules establishing training requirements a person must accomplish to obtain a certificate; TEC, §21.058, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which requires SBEC to revoke an educator's certificate if the educator is required to register as a sex offender or is convicted of certain felony offenses and the victim of the offense was under 18 years old; TEC, §21.0581, as added by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017, which allows the SBEC to suspend, revoke, or refuse to issue an educator's certificate if the person has assisted another person in obtaining employment at a school district or charter school when the person knew that the other person had previously engaged in sexual misconduct with a minor or student in violation of the law; TEC, §21.060, which sets out crimes that relate to the education profession and authorizes the SBEC to sanction or refuse to issue a certificate to any person who has been convicted of one of these offenses; TEC, §§21.105(c), 21.160(c), and 21.210(c), which give SBEC authority to sanction an educator who has a continuing, term, or probationary contract and who resigns without good cause; TEC, §22.085, which allows the SBEC to sanction educators who fail to fire or to refuse to hire an applicant when the educator knew or should have known from the background check that the employee had a criminal record reflecting certain offenses and requires a superintendent to certify to the commissioner of education that the school district is in compliance with this section; TEC, §22.087, which requires a superintendent to report to SBEC if the superintendent knows of information showing that an educator or an applicant for an educator certificate has criminal history that is not reflected in the criminal history information provided by the Texas Department of Public Safety in response to a background check; TEC, §57.491(g), which requires the SBEC to refuse to renew the certificate of any educator who is in default on student loan payments; Texas Government Code, §2001.058, which sets out the powers and duties of the State Office of Administrative Hearings and other state agencies with regard to contested case proceedings; and Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052, which give the SBEC the authority to automatically suspend, revoke, or disqualify a person from receiving an educator certificate if the person has been convicted of certain offenses.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code (TEC), §21.006, as amended by Senate Bill 7, 85th Texas Legislature, Regular Session, 2017; §21.007; §21.009, as added by SB 7; §§21.031(a); 21.035; 21.041; 21.044; 21.058, as amended by SB 7; §21.0581, as added by SB 7; §§21.060; 21.105(c); 21.160(c); 21.210(c); 22.085; 22.087; and 57.491(g); Texas Government Code, §2001.058; Texas Occupations Code, §§53.021(a), 53.022-53.025, 53.051, and 53.052; and Texas Penal Code, §21.12(a), as amended by SB 7.

§249.35.Disposition Prior to Hearing; Default.

(a) This chapter and 1 Texas Administrative Code (TAC), Part 7, Chapter 155 (relating to Rules of Procedure) shall govern disposition prior to hearing, default, and attendant relief.

(b) The Texas Education Agency (TEA) staff or the commissioner of education may issue and sign orders on behalf of the State Board for Educator Certification (SBEC) resolving a case, prior to the issuance of a proposal for decision by the presiding administrative law judge (ALJ) at the State Office of Administrative Hearings (SOAH), by waiver, stipulation, compromise, agreed settlement, consent order, agreed statement of facts, or any other informal or alternative resolution agreed to by the parties and not precluded by law.

(c) The SBEC or the SOAH may dispose of a case through dismissal, partial or final summary disposition, or any other procedure authorized by SOAH rules of procedure prior to a contested case hearing on the merits on the following grounds: unnecessary duplication of proceedings; res judicata; withdrawal; mootness; lack of jurisdiction; failure of a party requesting relief to timely file or file in proper form a pleading that would support an order or decision in that party's favor; failure to comply with an applicable order, deadline, rule, or other requirement issued by the SBEC, the TEA staff, or the presiding ALJ; failure to state a claim for which relief can be granted; or failure to prosecute.

(d) In any contested case hearing conducted pursuant to this chapter, the findings made by a hearing examiner in a proceeding arising under the Texas Education Code, Chapter 21, Subchapter F, shall not be conclusive but, the record of such proceeding, including all testimony and evidence admitted in the hearing, as well as the findings of the hearing examiner, shall be deemed admissible in a proceeding brought pursuant to this chapter and shall be considered by the ALJ and the SBEC in issuing a proposed or final decision.

(e) For purposes of this chapter, the following shall constitute a default in a contested case:

(1) the failure of the respondent to timely file a written answer in proper form as required by this chapter;

(2) the failure of the petitioner in an administrative denial case to timely file a petition in proper form as required by this chapter; or

(3) the failure of the certificate holder or applicant to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, regardless of whether a written answer or petition has been filed.

(f) Upon the occurrence of an event of default as defined in this section, the SBEC may enter a default judgment, as authorized by the Texas Government Code, §2001.056, or [and] 1 TAC, Part 7, §155.501 (relating to Default Proceedings).

(1) If a respondent has failed to timely file a written answer or a petitioner in an administrative denial case has failed to timely file a petition, TEA staff will provide the certificate holder or applicant with a notice of default specifying the factual and legal basis for imposing the proposed sanction at least 30 calendar days prior to presenting a motion for default to the SBEC. It is a rebuttable presumption that the notice was served on the certificate holder or applicant no later than five calendar days after mailing.

(2) If the case is dismissed and remanded to the SBEC by the SOAH after a certificate holder or applicant failed to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, the TEA staff attorney shall present to the SBEC a motion for default. After consideration of the petition and the motion for default, the SBEC may then issue a default order deeming the allegations in the petition as true.

(3) Prior to issuance of a default decision or order, the certificate holder may contest the issuance of a default judgment by written notice filed with TEA staff or by written request to appear before the SBEC at an SBEC meeting to show good cause for failure to file an answer or appear at the contested case proceeding.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 23, 2017.

TRD-201704277

Cristina De La Fuente-Valadez

Director, Rulemaking

State Board for Educator Certification

Earliest possible date of adoption: December 3, 2017

For further information, please call: (512) 475-1497