Denial of Video Surveillance of Special Education Settings Appeal

Tex. Educ. Code §29.022 mandates that school districts within the State of Texas conduct video and audio surveillance in certain special education classrooms and settings upon request. The statute seeks to ensure that the rights of disabled students are adhered to and respected at all times.

Upon receipt of a written request from an authorized party, a school district shall provide, place, operate, and maintain one or more video cameras in self-contained classrooms and other special education settings. (Tex. Educ. Code §29.022(a) and Texas Admin. Code §103.1301(a)). The list of authorized parties can be found at Tex. Educ. Code §29.022(a-1).

Appeal a Denial of Request of Video Surveillance to the Commissioner of Education

Complete Local School District's Grievance Process

Once a request for placement of a video camera or a request to release a video is administratively denied, the requestor must exhaust administrative remedies through the school district's grievance process. After local remedies are exhausted by filing a grievance with the school board and obtaining a school board determination, the requestor may appeal the denial to the commissioner of education under TEC §7.057, by filing a petition for review. (Texas Admin. Code §103.1303(b)(1) and (2))

Prepare and file a Petition for Review (Texas Admin. Code §103.1303(b)(6)(A))

A petition for review shall be filed with the commissioner within 10 calendar days of the decision of the board of trustees denying the request being first communicated to the requestor or requestor's counsel, whichever occurs first.

A Petition for Review shall contain the following in numbered paragraphs(Tex. Admin. Code § 157.1073(c)

A description of the challenged ruling, action, or failure to act complained of;
The date of the challenged ruling, action, or failure to act;
A precise description of the action the petitioner wants the commissioner to take on the petitioner's behalf;
A statement of jurisdiction and the legal basis for the claim;
The name, mailing address, telephone number of the petitioner's party representative during business hours, email, and facsimile number, if any; and
The name, mailing address, and business telephone of the respondent or the respondent's representative, email, and facsimile number, if any.

Filing of Documents with the Commissioner of Education

The Petition for Review must be filed with 7m��Ƶ’s Division of Hearings & Appeals, by , email to HearingsandAppeals@tea.texas.gov, mail, or hand delivery to Attn: Hearings and Appeals Division (160), 1701 N. Congress Ave., Suite 2-150, Austin, Texas 78701 or by facsimile to (512) 475-3662.

Service of Documents on Other Parties

Every document filed with 7m��Ƶ’s Hearings and Appeals Division shall be served on all interested parties or the interested party’s representatives as well as the school district and must contain a certificate of service.

7m��Ƶ Acknowledgment Letter

Upon receipt of the Petition for Review the hearings and appeals division will issue an acknowledgment letter providing parties notice that the case has been docketed.

Answer

The district's answer and local record shall comply with Texas Administrative Code §§157.1052(b), (c), and §157.1073(d) and shall be filed with the commissioner within 10 calendar days of the school district receiving notification from the commissioner of the appeal. (Texas Admin Code §103.1303(b)(6)(B))

Local Record (Tex. Admin. Code §157.1073(d))

It is the responsibility of the school district to make and preserve the records of the proceedings before the board of trustees. If the school district fails to create and preserve the record without good cause, all substantial evidence issues that require missing portions of the record for resolution shall be deemed against the school district. The record shall include: (1) a tape recording or a transcript of the hearing at the local level. If a tape recording is used: (A) the tape recording must be complete, audible, and clear; and (B) each speaker must be clearly identified; (2) all evidence admitted; (3) all offers of proof; (4) all written pleadings, motions, and intermediate rulings; (5) a description of all matters officially noticed; (6) if applicable, the decision of the hearing examiner; (7) a tape recording or transcript of the oral argument before the board of trustees; and (8) the decision of the board of trustees.

Objection to the record. In all hearings filed against a school district, the school district must file the local record with its answer. The school district shall notify the petitioner in writing when the local record is prepared and make the record available to the petitioner for inspection. A copy of the local record shall be provided to the petitioner for a reasonable charge upon request. In all hearings filed against a school district, the record before the commissioner shall be considered complete and accurate and shall be admitted into evidence for all purposes, unless within 30 days of the date of filing the record, the petitioner files objections to the record that specifically set forth the items that are relevant and material and have been erroneously omitted for the record or portions of the record that are relevant and material but have been inaccurately transcribed. The administrative law judge shall conduct a hearing to receive evidence relevant to the challenge to the record if it appears that the matter in dispute is material to the outcome of the hearing. (Tex. Admin. Code 157.1073(e)

Proposal for Decision (Tex. Educ. Code § 7.057(b))

A Proposal for Decision (“PFD”) will be issued no later than 180 calendar days from the date the Petition for Review was filed.

Filing of Exceptions and Replies to Proposal for Decision (Tex. Admin. Code § 157.1059)

Either party may file exceptions to a proposal for decision no later than 30 calendar days from the date the proposal for decision was issued. Parties may also file replies to the exceptions no later than 50 calendar days from the date of the proposal for decision. All disagreements with the factual findings and legal conclusions of the proposal for decision must be made in the parties' exceptions to the proposal for decision or be waived. The timelines may be modified by the administrative law judge.

Decision of the Commissioner (Tex. Educ. Code § 7.057(c))

After the time for filing exceptions and replies to exceptions expires, the administrative law judge's proposal for decision will be considered by the commissioner and either adopted or modified. (Tex. Admin. Code §157.1060). The commissioner’s decision will be issued no later than 240 calendar days from the date the petition for review was filed. The parties to the appeal may agree in writing to extend the decision deadline, by not more than 60 days.

Motions for Rehearing (Tex. Admin. Code (Tex. Admin. Code § 157.1061)

Either party aggrieved by the decision of the commissioner may file a motion for rehearing no later than 25 calendar days after the date the commissioner’s decision was signed. A party must file any replies to the motion for rehearing not later than 40 calendar days after the date the decision is signed. Agency action on the motion for rehearing must be taken within 55 calendar days after the date the decision or order that is the subject of the motion is signed. If agency action is not taken within the 55-day period after the date the decision or order that is the subject of the motion is signed, the motion for rehearing is overruled by operation of law. (Tex. Admin Code §157.1061).

Expedited Review of Appeal (Tex. Admin Code § 103.1303(b)(6) & 103.1303(b)(7)

The expedited review process is designed to allow a requestor to promptly receive a preliminary judgment from the commissioner as to a decision to deny a request for the installation of cameras or a decision to deny a request to release a video while at the same time respecting the school grievance process. The expedited review process does not apply to a request to only view a video.

Invoking the expedited review process results in a prompt initial determination. However, the final commissioner's determination is to be based on a substantial evidence review of the school district's grievance record.

A school district, parent, staff member, or administrator may request an expedited review. Any request for an expedited review shall include the names, telephone numbers, and addresses of all interested parties to the request. "Interested parties" are all persons who brought the grievance, all persons who have testified or provided written statements as part of the grievance process, and the school district. The request for expedited review shall specify whether the school district denied a request for the placement of a video camera or the school district denied a request to release a video and briefly describe why that decision is either correct or incorrect

Request for Expedited Review

A request for expedited review shall be filed with the commissioner no earlier than 14 business days after a request for placement of a video camera or a request to release a video is administratively denied under TEC, §29.022(i) or (l)(2), and no later than the fifth business day after a school board resolves a grievance as to a request for placement of a video camera or a request to release a video

Notice and Briefing Schedule

If a request for expedited review is timely filed, the commissioner will establish a briefing schedule and will send to all interested parties a notice that an expedited review has been filed, which will include relevant statutes and rules. Any interested party who knows of any additional interested parties who have not been notified will promptly inform the commissioner in writing.

All briefing shall clearly state the facts relied upon. Documents relevant to the issues presented may be attached to a brief. All briefing shall provide the reasons why the commissioner should or should not grant the request for expedited review. Citations to statutes, rules, commissioner decisions, and caselaw are important to identify the legal basis for the claims made
All interested parties who are in favor of granting the request for expedited review shall file briefing at the time specified for the requestor of the expedited review.
All interested parties who are opposed to granting the request for expedited review shall file briefing at the same time.
Briefing is not limited to the issues specifically raised in the pleadings in the case. However, no new arguments may be raised in the reply briefs. Reply briefs may contain new citations to the record and legal authority as to issues previously raised.

Preliminary Judgment

A preliminary judgment shall be issued based on the briefing of the interested parties. The preliminary judgment will be sent to the requestor, the school district, and all interested parties. If it is determined that a school district is not likely to prevail on the issue of a request for the placement of video cameras or the issue of a request to view a video under full review, the school district will fully comply with TEC, §29.022.

Final Judgment

After a preliminary judgment is made, a final judgment will be made in accordance with the procedures set forth in paragraphs (1)-(5) of Tex. Admin. Code 103.1303.