Bill not drafted by TLC or Senate E&E. Line and page numbers may not match official copy. By Stiles H.B. No. 3245 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to due process for education support personnel. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Texas Education Code, Chapter 21, is amended by 1-5 adding Subchapter K to read as follows: 1-6 SUBCHAPTER K. EDUCATIONAL SUPPORT PERSONNEL 1-7 Sec. 21.501. DEFINITIONS. As used in this subchapter, the 1-8 following terms shall have the meaning ascribed to them in this 1-9 section: 1-10 (a) "Board" and "board of trustees" means the governing 1-11 board of a public school district. 1-12 (b) "Educational support personnel" or "support personnel" 1-13 means a bus driver, custodian, food service employee, maintenance 1-14 employee, security personnel, educational aide, educational 1-15 secretary, paraprofessional and all other employees who do not fall 1-16 within the definition of "teacher" in Section 21.201 of this code. 1-17 (c) "School district" or "district" means any public school 1-18 district in this state. 1-19 (d) "Party" or "parties" means the administration of the 1-20 school district and the employee. 1-21 (e) "Commissioner" means the state commissioner of 1-22 education. 1-23 Sec. 21.502. EVALUATIONS. The board of trustees of each 1-24 school district shall provide by written board policy for the 2-1 periodic written evaluation of the performance of each educational 2-2 support personnel in its employ at annual or more frequent 2-3 intervals. 2-4 Sec. 21.503. RECOMMENDATION. Before the employment of any 2-5 educational support personnel may be terminated, the superintendent 2-6 shall recommend such action in writing to the board of trustees. 2-7 Sec. 21.504. NOTICE. (a) In the event the board receives a 2-8 recommendation from the superintendent for the termination of a 2-9 support personnel's employment, the board, after consideration of 2-10 the written evaluations required by Section 21.502 of this 2-11 subchapter and the reasons for the recommendation, shall, in its 2-12 sole discretion, either reject the recommendation or shall give the 2-13 support personnel written notice of proposed termination. 2-14 (b) The notice of proposed termination shall contain a 2-15 statement of all the reasons for such action, including all 2-16 relevant dates and conduct of the employee. 2-17 Sec. 21.505. REQUEST FOR HEARING. If the employee desires 2-18 to protest the proposed termination, the employee must notify the 2-19 superintendent or board of trustees, and the commissioner of 2-20 education in writing not later than the 15th day after the date the 2-21 employee received the notice under Section 21.504. 2-22 Sec. 21.506. HEARING. (a) If the employee requests a 2-23 hearing under Section 21.505, the board is required to hold such a 2-24 hearing and render a decision not less than 30 days and not more 2-25 than 75 days of receiving the employee's request for a hearing, 2-26 unless otherwise agreed by the parties. At the board's discretion, 2-27 a panel of three members of the board may hold the hearing and 2-28 render the board's decision, in place of the full board. The 2-29 employee shall get to select two members from the board to serve on 2-30 the panel, and the board shall select the remaining member. The 3-1 full board cannot take the case away from the panel without the 3-2 employee's permission. 3-3 (b) At the hearing, the administration has the burden of 3-4 proof by a preponderance of the evidence, and shall present its 3-5 case first. The employee may present a rebuttal case. The 3-6 administration and employee may examine and cross-examine 3-7 witnesses, and introduce other relevant evidence. 3-8 (c) The hearing shall be moderated by a hearing examiner 3-9 appointed by the commissioner, which shall be assigned from the 3-10 same list of hearing examiners and in the same manner as the 3-11 commissioner assigns hearing examiners under Section 21.254. The 3-12 role of the hearing examiner is to schedule and recess the hearing 3-13 with input from the parties and board, issue subpoenas upon a 3-14 showing of good cause by either party for the attendance of 3-15 witnesses, administer oaths, rule on motions, rule on the 3-16 admissibility of evidence using the Texas Rules of Civil Evidence, 3-17 and maintain decorum. The hearing examiner may extend the 75 day 3-18 timeline in Section 21.506(a) up to 45 days upon a showing of good 3-19 cause by either party. 3-20 (d) Without request, the administration shall provide the 3-21 employee with copies of every document and every item of physical 3-22 evidence it will use in its case at least 20 days before the 3-23 hearing. The employee may reasonably request other relevant 3-24 documents which the administration shall respond to within 10 days. 3-25 Without request, the administration shall provide the employee a 3-26 list of witnesses it plans to call in its case, together with a 3-27 summary of their anticipated testimony, at least 20 days before the 3-28 hearing. Neither party may take depositions or use other means of 3-29 discovery unless by agreement. 3-30 (e) The hearing shall be conducted in the same manner as a 4-1 trial in a district court of this state. A certified court 4-2 reporter must record the proceedings. The school district shall 4-3 bear the expense of the hearing examiner and court reporter. 4-4 (f) The parties may agree at any time to use a hearing 4-5 examiner of their choice, but such person must be a licensed 4-6 attorney in this state, or a law professor at any law school 4-7 accredited by the State Bar of Texas. 4-8 (g) The board or panel may not discuss or deliberate the 4-9 case until the evidence is closed. The employee may allow the 4-10 board to discuss and deliberate the case privately. The board or 4-11 three member panel must make a decision on the record within the 4-12 timelines set forth above. 4-13 Sec. 21.507. APPEALS. (a) The employee may appeal the 4-14 decision of the board to the commissioner of education who will 4-15 render a de novo decision based on the record of the proceedings 4-16 before the board or panel. The commissioner will not take any new 4-17 evidence unless procedural irregularities that are not reflected in 4-18 the local record occurred at the hearing before the board or panel. 4-19 Such an appeal must be filed with the commissioner not later than 4-20 45 days after the board or panel announces its decision on the 4-21 record. The school district must file its answer and the record of 4-22 local proceedings with the commissioner not later than 30 days 4-23 after it has been notified in writing of the appeal. 4-24 (b) The commissioner must render a written decision within 4-25 90 days of receiving the appeal. 4-26 (c) The employee may appeal the commissioner's decision into 4-27 the district court in the county in which the school district is 4-28 located, or in Travis County by agreement. Such an appeal must be 4-29 filed within 30 days of the employee receiving the commissioner's 4-30 decision. The commissioner shall be responsible for filing the 5-1 record with the district court. 5-2 SECTION 2. This Act takes effect September 1, 1997. 5-3 SECTION 3. The importance of this legislation and the 5-4 crowded condition of the calendars in both houses create an 5-5 emergency and an imperative public necessity that the 5-6 constitutional rule requiring bills to be read on three several 5-7 days in each house be suspended, and this rule is hereby suspended.