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.