§229.8: Accreditation Revocation Appeals

(a) Applicability. This section applies only to a final order issued under §229.5 of this title (relating to Accreditation Sanctions and Procedures) or §229.6 of this title (relating to Continuing Approval) that orders revocation of approval and closure of an educator preparation program (EPP) and does not apply to a final decision or order assigning Accredited-Warned or Accredited-Probation status or ordering any other sanction, including, without limitation, withdrawing approval to offer a specific certification field, public reprimand, imposing conditions upon continuing approval, requiring technical assistance, requiring professional services, or appointing a monitor.

(b) Applicability of other law. An appeal under this section shall be governed by the contested case procedures provided by Chapter 157, Subchapter EE, of this title (relating to Review by State Office of Administrative Hearings: Certain Accreditation Sanctions) and Texas Government Code, Chapter 2001. To the extent that a provision of this section conflicts with a rule or practice of the State Office of Administrative Hearings (SOAH), this section shall prevail.

(c) Petition for review. An EPP subject to a decision (final order), made applicable to this section by subsection (a) of this section, may file with the State Board for Educator Certification (SBEC) a petition for review of that decision not later than 30 calendar days after the date the decision to be reviewed is received by the EPP. The decision may be delivered by mail, personal delivery, facsimile, or email.

(1) The petition for review shall include a copy of the challenged decision and any attachments or exhibits and incorporated documents.

(2) The petition for review shall concisely state, in numbered paragraphs:

(A) if alleging the decision was made in violation of a statutory provision, the statutory provision violated and the specific facts supporting a conclusion that the statute was violated by the decision;

(B) if alleging the decision was made in excess of the SBEC's statutory authority, the SBEC's statutory authority and the specific facts supporting a conclusion that the decision was made in excess of this authority;

(C) if alleging the decision was made through unlawful procedure, the lawful procedure and the specific facts supporting a conclusion that the decision was made through unlawful procedure;

(D) if alleging the decision was affected by other error of law, the law violated and the specific facts supporting a conclusion that the decision violated that law;

(E) if alleging the decision was not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole, each finding, inference, conclusion, or decision that was unsupported by substantial evidence in the record;

(F) if alleging the decision was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, each finding, inference, conclusion, or decision affected and the specific facts supporting a conclusion that each was so affected; and

(G) for each violation, error, or defect alleged under subparagraphs (A)-(F) of this paragraph, the substantial rights of the EPP that were prejudiced by such violation, error, or defect.

(3) A petition for review shall further contain:

(A) a concise statement of the relief sought by the EPP (petitioner); and

(B) the name, mailing address, telephone number, and facsimile number of the petitioner's representative.

(4) A request for relief in a review under this section may not be made orally or as part of the record at a record review, prehearing conference, or hearing.

(5) Failure to comply with the requirements of this subsection shall result in dismissal of the petition for review. A petition for review may not be amended or supplemented after the deadline for filing a petition for review.

(6) The SBEC shall transmit the petition for review to the SOAH with a request that it be docketed.

(7) If the SBEC chooses to file an answer, the answer must be filed by the date the record is filed under subsection (l) of this section.

(d) Standard of review. A challenge under this section shall be governed by the substantial evidence rule as provided by the Texas Government Code, §2001.174 and §2001.175, and judicial case precedents construing those provisions.

(e) Matters within SBEC's discretion. The SOAH may not substitute the SOAH judgment for the judgment of the SBEC on questions committed to the SBEC's discretion. Questions committed to the SBEC's discretion include, but are not limited to, the following:

(1) any questions arising under a statute, rule, or other legal standard that requires or permits the SBEC to make a decision within general legal guidelines that do not mandate a specific result under the circumstances; and

(2) the execution of any act authorized or required to be taken by the SBEC.

(f) Weight of evidence. The SOAH may not substitute the SOAH judgment for the judgment of the SBEC on the weight to be assigned the evidence before the SBEC.

(g) SOAH decisions. The SOAH may affirm the SBEC decision in whole or in part. The SOAH shall reverse and remand the decision for further proceedings if substantial rights of the EPP have been prejudiced because the administrative findings, inferences, conclusions, or decisions of the SBEC are:

(1) in violation of a statutory provision;

(2) in excess of the SBEC's authority;

(3) made through unlawful procedure;

(4) affected by other error of law;

(5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(h) Remand. An order of remand may not direct or control the SBEC's exercise of discretion on a matter committed to the SBEC's discretion by the Texas Education Code (TEC), Chapter 21, Subchapter B, and the SBEC shall continue to exercise that discretion after remand. On remand, the SBEC shall apply the facts and law as determined by the SOAH to reach a new decision in light of all the circumstances of the case.

(i) Scope of review. The administrative law judge (ALJ) is confined to the SBEC record, except that the ALJ may receive evidence of procedural irregularities alleged to have occurred before the SBEC that are not reflected in the record.

(j) Additional evidence. A party may apply to the ALJ to present additional evidence of procedural irregularities alleged to have occurred before the SBEC that are not reflected in the record. If the additional evidence is material to the outcome of the review, and if there were good reasons for the failure to present it in the proceeding before the SBEC, the ALJ may order that the additional evidence be taken before the SBEC or its TEA representative on conditions determined by the ALJ. The SBEC shall file the additional evidence and any changes, new findings, or decisions with the ALJ. The ALJ may not take testimony, question witnesses, administer oaths, rule on questions of evidence, or compel discovery or disclosure of evidence in any form.

(k) Components of SBEC record. The SBEC record of proceedings shall include the following components, as specified under §229.7 of this title (relating to Record Review of Certain Decisions):

(1) the notice of proposed order, including all information referenced in the notice;

(2) the request for record review, including any request for the attendance of specific TEA staff under §229.7(d)(3) of this title;

(3) any written correspondence made a part of the record by the TEA representative under §229.7(d)(5) of this title;

(4) any audiotapes or similar recordings made a part of the record by the TEA representative under §229.7(d) of this title;

(5) all audiotapes or similar recordings of the record review and any recorded telephone conferences, proffers of excluded information, or other recorded proceedings before the TEA representative under §229.7 of this title;

(6) all written information presented to the TEA representative during the record review;

(7) a description of all matters officially noticed; and

(8) the final order issued under §229.7(f) of this title.

(l) Proceedings regarding SBEC record. The SBEC shall file the original or a certified copy of the entire record of the proceeding under review not later than 20 calendar days after the date the petition for review is filed, unless additional time is allowed by the ALJ. The record may be shortened by stipulation of all parties to the review proceedings. The ALJ may assess costs against a party who unreasonably refuses to stipulate to limit the record, unless that party is required to pay all costs of record preparation. The petitioner shall offer, and the ALJ shall admit, the TEA record into evidence as an exhibit. The ALJ may require or permit later corrections or additions to the record.

(m) Enforcement of decision pending review. The pendency of a review under this section does not stay or otherwise affect the enforcement of the SBEC decision challenged under this chapter.

(n) Expedited review. The SOAH shall expedite its review of a challenge under this section. The ALJ shall issue a pre-hearing order initially setting a date for closure of the record that is not later than 30 calendar days after the date the petition for review is filed. The ALJ may grant a continuance of the record closure date only for good cause shown. The ALJ may not order a settlement conference, mediation, or other form of alternative dispute resolution. The ALJ shall issue a final order not later than 30 calendar days after the date on which the record is finally closed.

(o) Final decision. The decision of the ALJ is final and may not be appealed. The decision of the ALJ:

(1) must rule on any mandatory sanction required by the TEC, §21.0451;

(2) may not order a sanction or relief that the SBEC is not authorized to order under applicable law; and

(3) may not change an accreditation status.

Comments

Source Note: The provisions of this §229.8 adopted to be effective April 18, 2010, 35 TexReg 2849