No. 03-14-00629-CV

IN THE COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT

AT AUSTIN, TEXAS 

LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT AND 

MICHAEL L. WILLIAMS, THE STATE COMMISSIONER OF EDUCATION, 

Appellants, 

v.

JORGE VAZQUEZ,

Appellee.

AMICUS CURIAE BRIEF OF THE

TEXAS AMERICAN FEDERATION OF TEACHERS

 

 DEATS DURST & OWEN, P.L.L.C. 

 1204 San Antonio Street, Suite 203

 Austin, Texas 78701

 (512) 474-6200

 (512) 474-7896 (FAX) 

 Martha P. Owen

 State Bar No. 15369800

mowen@ddollaw.com 

Matt Bachop

 State Bar No. 24055127

 mbachop@ddollaw.com

COUNSEL FOR AMICUS CURIAE TEXAS 

AMERICAN FEDERATION OF TEACHERS

ACCEPTED

03-14-00629-CV

4840513

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/10/2015 10:57:28 AM

JEFFREY D. KYLE

CLERK

 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 10:57:28 AM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

Table of Contents....................................................................................................... i

Index of Authorities.................................................................................................. ii

Statement of Interest of Amicus Curiae.....................................................................1

Issue Presented...........................................................................................................2

Summary of Argument ..............................................................................................2

Argument & Authorities............................................................................................2

I. Hearsay cannot be admitted in a non-renewal hearing unless an exception 

applies. .......................................................................................................................3

II. There is no evidence that any possible hearsay exception was met in this case.4

A. A brief word about which hearsay exceptions apply to non-renewal 

hearings...................................................................................................................4

B. Even if the Court accepts the Commissioner’s argument about which 

exceptions apply, no evidence was presented to support the argument that the 

written statements in this case met any possible exception. ..................................6

1. The Commissioner’s arguments...................................................................7

2. The District’s arguments..............................................................................9

C. This case does not raise the difficult issues...............................................10

Conclusion & Prayer................................................................................................11

Certificate of Compliance ........................................................................................12

Certificate of Service ...............................................................................................13
ii

INDEX OF AUTHORITIES

Cases

Crawford v. Washington, 541 U.S. 36 (2004)...........................................................4

Lewis v. Southmore Sav. Ass’n, 480 S.W.2d 180 (Tex. 1972). .................... 3, 4, 5, 6

US v. McCormick, 54 F. 3d 214, 221 (5th Cir. 1995)................................................4

Statutes

TEX. EDUC. CODE § 21.207 ....................................................................................4, 9

TEX. GOV’T CODE § 2001.081..................................................................... 5, 6, 7, 11

Rules

TEX. R. EVID. 703.......................................................................................................5

TEX. R. EVID. 705.......................................................................................................5

TEX. R. EVID. 803.......................................................................................................5
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STATEMENT OF INTEREST OF AMICUS CURIAE

The Texas American Federation of Teachers (“Texas AFT”) is a statewide 

organization representing teachers, paraprofessionals, and other public school 

employees working in school districts across Texas. Texas AFT has over 65,000 

members. It is affiliated with the American Federation of Teachers, a national 

organization with over 1.6 million members. Texas AFT is dedicated to 

advocating for the economic, social, and professional interests of its members. It 

strives to protect and expand the legal rights of public school employees in the 

Texas. Texas AFT advocates quality education for students, and dignity for those 

who provide it.

This case presents issues of direct concern and consequence to the members 

of Texas AFT. The issue in this case—whether a teacher's contract can be nonrenewed solely on the basis of hearsay statements, without any showing that the 

school district even asked the witnesses to testify live, much less a showing that 

obtaining that live testimony would be difficult or impossible—is of profound 

importance to Texas AFT’s members. 

Texas AFT submits this amicus brief in support of the district court’s 

September 3, 2014 judgment reversing the decision of the Commissioner of 

Education. The district court correctly concluded that there is not a shred of record 

evidence supporting the Commissioner's ruling that the hearsay statements that 
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were the sole basis for the non-renewal of Mr. Vazquez’s contract were “necessary 

to ascertain facts not reasonably susceptible of proof” by live testimony. 

ISSUE PRESENTED

Can hearsay statements form the sole basis for non-renewal of a 

teacher’s term contract in the absence of any evidence indicating the 

witnesses were not reasonably available to provide live testimony?

SUMMARY OF ARGUMENT

The district court’s narrow, fact-specific ruling in this case was that 

regardless of the evidentiary rules that apply to a non-renewal hearing, the only 

basis for the non-renewal of Mr. Vazquez’s contract was hearsay that did not come 

close to falling within any possible exception. The evidentiary record in this case 

requires affirmance of that ruling. 

ARGUMENT & AUTHORITIES

The Court need not decide many of the weighty issues raised by the parties 

and by the Texas Association of School Boards in the briefing. The Court does not 

need to rule on what evidentiary rules apply to teacher non-renewal hearings or 

whether students’ written statements can ever be properly admitted in such 

hearings. Nor does the Court have to determine how to deal with students who are 

unable to testify, who do not want to testify, whose parents do not want them to 

testify, or who might be harmed by testifying. 
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The only issue the Court needs to decide is whether a non-renewal decision 

can stand when it is supported solely by hearsay student statements, when the 

record contains no indication that the students were unable or unwilling to testify

or that the students' parents expressed concerns about their testifying, and when 

there is testimony from the school principal that there was no concern about the

potential of psychological trauma in connection with possible student testimony. 

For the reasons that follow, the trial court correctly ruled that such a decision must 

be reversed.

I. Hearsay cannot be admitted in a non-renewal hearing unless an 

exception applies.

There can be no serious argument that hearsay can be admitted without 

restriction in a non-renewal hearing. Though the school district in this case takes 

that position (ISD’s Brief at 40–51), the Commissioner does not support it, and the 

relevant case law and statute do not either. As the Commissioner acknowledges, 

even before there were “Texas Rules of Evidence,” the Texas Supreme Court made 

clear that “[i]n Texas the hearsay rule applies in administrative hearings just as it 

does in court. And it is a rule that forbids the reception of evidence rather than one 

that merely goes to the weight of the evidence.” Lewis v. Southmore Sav. Ass’n, 

480 S.W.2d 180, 186 (Tex. 1972).

This prohibition on the introduction of hearsay is confirmed in the Education 

Code, which provides that at a non-renewal hearing, a teacher has the right to 
4

“cross-examine adverse witnesses.” TEX. EDUC. CODE § 21.207(c)(3). The ISD’s 

assertion that this right has nothing to do with the introduction of hearsay (ISD’s 

Brief at 54–57) is disingenuous and is not supported by the Commissioner. Courts 

have repeatedly held that the right to cross-examine adverse witnesses does restrict 

the admission of hearsay. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004)

(holding that the Sixth Amendment right to cross-examine adverse witnesses 

restricts the admission of hearsay); US v. McCormick, 54 F. 3d 214, 221 (5th Cir. 

1995) (holding that the Fifth Amendment right to cross-examine adverse witnesses 

restricts the admission of hearsay).

It is undisputed that the student statements at issue in this case are hearsay, 

and thus they could be properly considered only if they fall within an exception to 

the rule against admission of hearsay.

II. There is no evidence that any possible hearsay exception was met in this 

case.

A. A brief word about which hearsay exceptions apply to non-renewal 

hearings.

As a preliminary matter, the ISD and the Commissioner make far too much

out of the Texas Supreme Court’s reference to “the liberal exceptions to the rule

[against hearsay]” that apply in administrative hearings. Lewis v. Southmore Sav. 

Ass’n, 480 S.W.2d 180, 186 (Tex. 1972). They conveniently ignore the fact that 

the Court is describing the exceptions that exist under law and not creating a new, 
5

broad, open-ended category for hearsay exceptions in administrative cases. The 

examples of those “liberal exceptions” that the Court gives were all established in 

the Texas common law of evidence at the time of the decision, and have now been 

codified in the Texas Rules of Evidence. Id. at 186–87 (discussing the hearsay 

exception for market reports, which is now codified at TEX. R. EVID. 803(17), and 

the hearsay exception for information reasonably relied on by an expert, which is 

now codified at TEX. R. EVID. 703, 705(a)). Accordingly, as the Court held, the 

“liberal exceptions” allowing the admission of hearsay in administrative hearings 

are the ones that apply in court. Id.

This rule has been modified by statute for contested cases in front of state 

agencies under the Administrative Procedure Act (“APA”). TEX. GOV’T CODE

§ 2001.081. Section 2001.081 provides that for contested cases under the APA, 

“evidence inadmissible under [the Texas Rules of Evidence] may be admitted if 

the evidence” meets three criteria set out in the statute. Id. Although the 

Commissioner concedes that “the APA does not directly apply to nonrenewal 

hearings” (Commissioner’s Brief at 21), he nonetheless urges that section 

2001.081’s standards should be applied to non-renewal hearings because they 

represent a codification of the “liberal exceptions” to the rule against hearsay that 

the Supreme Court referred to in Lewis v. Southmore Savings Association. 

(Commissioner’s Brief at 21.) 
6

This argument defies logic. The Lewis Court ruled that the only hearsay 

exceptions that apply in administrative hearings are those that apply in court. 480

S.W.2d at 186. Section 2001.081 explicitly adds exceptions for certain hearings—

not including non-renewal hearings in front of school boards—that are not 

available in court. TEX. GOV’T CODE § 2001.081. As such, section 2001.081 is a 

modification of Lewis’s holding, not a codification. Accordingly, there is no basis 

to apply its standards to a non-renewal hearing. Indeed, neither the Commissioner 

nor the District has identified a single other instance in which section 2001.081 has 

been applied by the Commissioner in a non-renewal case. Instead, undercutting 

his own reasoning, the Commissioner cites many of his own non-renewal decisions 

in which hearsay was excluded when none of the exceptions in the Texas Rules of 

Evidence was met. (Commissioner’s Brief at 29.)

B. Even if the Court accepts the Commissioner’s argument about 

which exceptions apply, no evidence was presented to support the 

argument that the written statements in this case met any possible 

exception.

Nonetheless, even if section 2001.081 did apply to the hearing in this case, 

there is no record evidence indicating that its requirements were met, as the trial 

court correctly concluded. Specifically, section 2001.081 only allows the 

admission of evidence “necessary to ascertain facts not reasonably susceptible of 

proof under” the Texas Rules of Evidence. TEX. GOV’T CODE § 2001.081. The 

district court ruled that the only record evidence on this issue indicated that the 
7

alleged facts contained in the hearsay statements were reasonably susceptible of 

proof by live testimony. (C.R. 152.) The trial court pointed to testimony by the 

school’s principal—which was the only evidence on this issue—in which he said 

that he did not have any concern that it would have been difficult for the student 

witnesses to provide live testimony. (C.R. 152–153.)

Neither the ISD nor the Commissioner has cited any evidence supporting the 

assertion that the student statements in this case were necessary to ascertain facts 

not reasonably susceptible of proof under the rules of evidence. 

1. The Commissioner’s arguments.

The Commissioner makes five assertions on the “reasonably susceptible” 

issue. First, the Commissioner argues that “because the District could not 

subpoena the students, the Board could not ensure the students’ appearance at the 

hearing.” (Commissioner’s Brief at 23.) Notably, the Commissioner cites no 

evidence that the District even asked any of the students to appear at the hearing, 

much less that the District had any difficulty obtaining voluntary attendance. 

Second, the Commissioner urges that “it was unlikely that [the students’]

parents would allow them to testify and face a teacher who had embarrassed and 

belittled them.” (Commissioner’s Brief at 23.) Again, the Commissioner cites no 

evidence about what the parents actually thought, or even any speculation from an 
8

administrator about what the parents might have thought. As such, this argument

is simply unsupported conjecture.

Third, the Commissioner asserts that “the short length of time for a 

nonrenewal hearing” supports the conclusion that the alleged facts in the hearsay

statements were not reasonably susceptible of proof by live testimony. 

(Commissioner’s Brief at 23.) Again, there is no citation to the record, which 

reveals that the hearing in this case lasted at least three hours, with four live 

witnesses and 42 exhibits. There is no evidence bearing out the Commissioner’s 

implicit assertion that the students would not have been permitted to testify 

because of time considerations.

Fourth, the Commissioner contends that the “Board’s possible reluctance to 

subject students to further public humiliation” supports the argument that the 

students’ live testimony could not reasonably be presented. (Commissioner’s Brief 

at 23.) The Commissioner is dissembling: the hearing in this case was closed to 

the public, as are all such hearings, unless the teacher requests an open hearing. 

See TEX. EDUC. CODE § 21.207(a). There is no evidence that possible “public 

humiliation” was even considered by this Board, much less that it motivated its 

actions. Accordingly, the Commissioner’s speculation does not provide grounds 

for the introduction of the hearsay statements.
9

Fifth, the Commissioner relies on the Superintendent’s opinion that it would 

have been “highly inappropriate” for students to testify under oath about the same 

issues that they voluntarily discussed with District administration during the

investigation and that they gave written statements about. (Commissioner’s Brief 

at 23–24.) Of course, the Superintendent’s views about what is “appropriate” have 

nothing whatsoever to do with whether the students’ live testimony was reasonably 

available.

2. The District’s arguments.

The District makes two arguments on the “reasonably susceptible” issue, 

which overlap with the Commissioner’s arguments and are similarly unpersuasive. 

First, the District urges that “that the District lacked subpoena power to compel 

[the students’] attendance.” (ISD’s Brief at 52–53.) As mentioned above, that fact 

has little bearing in the absence of evidence that the District made any effort to 

secure the students’ voluntary attendance. No such evidence is contained in this 

record.

Second, the District contends that “policy considerations of not forcing 

minor children to testify against a teacher and be cross-examined dictate against 

making their live testimony required.” (ISD’s Brief at 53.) Again, this argument 

ignores the fact that forcing a witness to attend a hearing is not the only avenue to 

obtain testimony from a witness. Without evidence that some effort was made to 
10

obtain testimony on a voluntary basis, this contention does nothing to establish that 

the students’ testimony was not reasonably available.

None of the Commissioner’s or the ISD’s arguments provides any support 

for reversing the trial court’s decision that the hearsay student statements that 

provided the sole basis for the non-renewal of Mr. Vazquez’s contract were not 

necessary to ascertain facts not reasonably susceptible of proof by live testimony.

C. This case does not raise the difficult issues.

This would be a more difficult case for the Court if the record contained 

evidence that the students were unable, unwilling, or hesitant to testify, or that the 

students’ parents had concerns about their testifying or forbid it, or that there was 

some danger of trauma to the students if they testified live. If that evidence 

existed, then the Court would have to determine whether TEX. GOV’T CODE

§ 2001.081 applies to a non-renewal hearing, and if the Court determined that it 

does, the Court would have to analyze the boundaries of what it means for facts to 

be “reasonably susceptible of proof” by live testimony.1

Because there is no such evidence in this case, the Court need not wrestle 

with those issues. Even if section 2001.081 applies to a non-renewal hearing, and 

 1 If the APA contested case provisions were found to govern non-renewal proceedings, it should 

be noted that those provisions specifically address and limit the admission of hearsay statements 

of children in child abuse cases. TEX. GOV’T CODE § 2001.122. Even if the teacher’s alleged

conduct could be considered abuse, which amicus curiae disputes, the APA would not allow the 

admission of the hearsay statements of the students in this case because, among other reasons, 

the students were not 12 years of age or younger. § 2001.122(a)(1).
11

even if “reasonably susceptible” is given the interpretation most favorable to the 

Commissioner and the District, there is nothing in the record supporting the 

Commissioner’s exclusive reliance on hearsay in upholding the non-renewal of Mr. 

Vazquez’s contract.

As the district court correctly concluded,

It is truly unfortunate that the school district chose to conduct this 

hearing without calling a single witness to provide non-hearsay

testimony about the salient facts, and without providing an adequate 

explanation or excuse for their failure to do so. In making this choice, 

the school district left the Commissioner, and this Court, without 

substantial evidence to support its decision. Accordingly, the Court

must now reverse.

(C.R. 153.)

CONCLUSION & PRAYER

Texas law does not allow hearsay statements to form the sole basis for the 

non-renewal of a teacher’s term contract in the absence of any evidence indicating 

that live testimony from those witnesses was not reasonably available. 

Accordingly, Texas AFT respectfully prays that the Court affirm the trial court’s 

ruling in its entirety.
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Respectfully submitted,

DEATS DURST & OWEN, P.L.L.C.

1204 San Antonio Street, Suite 203

Austin, Texas 78701

(512) 474-6200

(512) 474-7896 (Fax)

/s/ Matt Bachop

Martha Owen

State Bar No. 15369800

mowen@ddollaw.com

Matt Bachop

State Bar No. 24055127

mbachop@ddollaw.com

COUNSEL FOR APPELLEES

CERTIFICATE OF COMPLIANCE

I hereby certify that this Amicus Curiae Brief complies with the

requirements of the Texas Rules of Appellate Procedure: 

1. The brief contains 3,050 words.

2. The brief complies with the briefing rules for parties.

3. The brief is being tendered on behalf of the Appellee.

4. The source of any fees paid or to be paid for the preparation of this 

brief is the Texas Federation of Teachers.

5. Copies of this brief have been served on all parties.

/s/ Matt Bachop

Matt Bachop
13

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document has 

been sent to counsel for all parties on this 10th day of April, 2015, by electronic 

service, to:

Mark W. Robinett

BRIM, ARNETT & ROBINETT, P.C.

2525 Wallingwood Drive

Building 14

Austin, Texas 78746

mrobinett@brimarnett.com

Facsimile: (512) 328-4814

Stacy T. Castillo

D. Craig Wood

Elizabeth G. Neally

WALSH, ANDERSON, GALLEGOS, GREEN 

& TREVINO, P.C.

100 NE Loop 410, Suite 900

San Antonio, Texas 78216

scastillo@wabsa.com

cwood@wabsa.com

eneally@wabsa.com

Facsimile: (210) 979-7024

Jennifer L. Hopgood

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 12548

Austin, Texas 78711-2548

jennifer.hopgood@texasattorneygeneral.

gov

Clay T. Grover

Caitlin H. Sewell

ROGERS, MORRIS & GROVER, L.L.P.

5718 Westheimer, Ste. 1200

Houston, Texas 77057

cgrover@rmgllp.com

csewell@rmgllp.com

Facsimile: (713) 960-6025

/s/ Matt Bachop

Matt Bachop