Texas Administrative Code › Title 19 - EDUCATION › Part 2 - TEXAS EDUCATION AGENCY › Chapter 103 - HEALTH AND SAFETY › Subchapter DD - COMMISSIONER'S RULES CONCERNING VIDEO SURVEILLANCE OF CERTAIN SPECIAL EDUCATION SETTINGS › Section 103.1303 - Commissioner's Review of Actions Concerning Video Cameras in Special Education Settings

Current through Reg. 49, No. 28; July 12, 2024
(a) Applicability.
				  This section shall apply to all hearings and reviews of actions taken under
				  Texas Education Code (TEC), §29.022, concerning denials of requests for
				  the installation of cameras, denials of requests to view a video, denials of
				  requests to release a video, and requests of a school district for an extension
				  of time for the installation of cameras. This section applies to constructive
				  denials of requests, which occur when a school district fails to timely issue a
				  denial of a request. To the extent that this section conflicts with any other
				  sections governing hearings before the commissioner of education, including
				  Chapter 157, Subchapter AA of this title (relating to General Provisions for
				  Hearings Before the Commissioner of Education) and Subchapter BB of this title
				  (relating to Specific Appeals to the Commissioner), this section shall
				  prevail.
(b) Denial of request. The
				  following standards and procedures apply to a denial of a request made under
				  TEC, §
										29.022(a),
				  for the placement of a video camera or to the denial of a request to release a
				  video or to view a video made under TEC, §
										29.022(i) or
				  (l)(2).
(1)
				  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 even if the requestor opts for
				  the expedited review process. However, a school district, parent, staff member,
				  or administrator may request an expedited review even before local remedies are
				  exhausted.
(2) 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.
(3) In a case
				  where there is a denial of a request for the placement of a video camera, the
				  commissioner will determine whether the person requesting placement is a person
				  allowed to request placement under TEC, §
											29.022(a-1),
				  and whether the requestor made a proper request under TEC, §
											29.022(a-3).
(4) The commissioner will not consider the
				  cost to the district of installing cameras or releasing a video.
(5) In a case where there is a denial of a
				  request to release a video, the commissioner will determine whether the
				  requestor is a person allowed to receive a video under TEC, §
											29.022(i).
				  The commissioner may make an in-camera inspection of the video in question in
				  the appropriate case.
(6) The
				  following timelines are established for filing a petition for review.
(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. The petition for review shall be
				  made in accordance with §
												157.1073(c) of
				  this title (Relating to Hearings Brought Under Texas Education Code, §
												7.057) and may include
				  a request for expedited review.
(B)
				  The district's answer and local record shall comply with §
												157.1052(b) and
				  (c) of this title (relating to Answers) and
				  §
												157.1073(d) of
				  this title and shall be filed with the commissioner within 10 calendar days of
				  the school district receiving notification from the commissioner of the
				  appeal.
(C) The procedures
				  specified in §§157.1059; 157.1061; and 157.1073(e)-(h), (j), and (k)
				  of this title apply to a case brought to the commissioner under this
				  section.
(7) A request
				  for expedited review is governed by the following.
(A) 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. This allows for a full record to be developed at
				  the school district level and does not require the requestor and the school
				  district to make an evidentiary record before the Texas Education Agency (TEA)
				  in Austin, Texas. Because the requirements of TEC, §
												7.057, are met when
				  the school board's decision is heard by the commissioner, an appeal to district
				  court is allowed under TEC, §
												7.057(d).
				  TEC, §
												29.022, does not by
				  itself allow an appeal to district court.
(B) 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.
(C) 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. A request for expedited review
				  shall be filed with the commissioner electronically as provided on the
				  division's website or by U.S. mail, facsimile, hand delivery, or a commercial
				  delivery service.
(D) Whenever an
				  interested party files a document with the commissioner, with the exception of
				  the request for expedited review, the interested party shall send the same
				  document to all other interested parties by the same method that the document
				  was sent to the commissioner. Hand-delivery of the document by the next day may
				  be substituted for service by facsimile delivery.
(E) 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.
(F) 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.
(G) 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.
(H) All
				  interested parties who are opposed to granting the request for expedited review
				  shall file briefing at the same time.
(I) 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.
(J) 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.
(K) After a preliminary judgment is made, a
				  final judgment will be made in accordance with the procedures set forth in
				  paragraphs (1)-(5) of this subsection.