There are three types of teachers’ contracts in Texas: (1) probationary, (2) term, and (3) continuing.

Generally, the contracts states, among other things, what teachers can expect as far as working conditions, certification requirements, termination procedures, and continued employment. Depending on the type of contract, the rights as teacher-employee can be expanded or limited. Generally, if a teacher is terminated in the middle of a contract, the teacher-employee has a right to a “due process” hearing, in which the district must state good cause to terminate the contract.

Probationary contracts are usually awarded to first-time teachers or teachers new to a district. The contract term lasts for one year, and the probationary contract itself may be extended two times, for a total of three years.

A probationary contract may be terminated at the end of the year (at the end of the contract term) or mid-year. If terminated at the end of the year, the termination must merely be in “the best interest of the district.” If terminated mid-year, the district must have good cause for the termination.

Chapter 21 of the Texas Education Code defines good cause as “the failure to meet the accepted standards of conduct for the profession as generally recognized and applied in similarly situated school districts in this state”.

Written notice must be given to the teacher at least 10 days before the last day of instruction. The notice must be hand delivered to the teacher on campus, or if the teacher is not present, the notice must be mailed to the teacher by certified mail. There is no right to appeal the termination decision.

If the termination notice is defective, the district must continue employment under another probationary contract for another year unless the teacher just completed a third term as a probationary contract employee, in which case that teacher will be employed under a term or a continuing contract.

A continuing contract is generally considered the most desired type of teaching contract. Under Texas law, a teacher with a continuing contract is “entitled” to continued employment without the requirement of nomination or reappointment until that teacher resigns or retires, is laid off subject to a necessary reduction in force, or is terminated for good cause.

In cases of termination, the teacher must be notified in writing of the proposed action (termination) and the grounds for discharge. If the discharge is for inability to perform assigned duties, then the teacher has a right to a copy of each evaluation or report concerning that teacher’s fitness. This must be requested in writing.

Yes, a teacher can also request a due process hearing for a good cause discharge, a suspension without pay, or a reduction in force, but the teacher must give written notice no later than the 10th day following the teacher’s receipt of the discharge notice. If no hearing is requested, then the proposed action will be taken within 30 days following the date the school board sent notice to the teacher.

Generally, a teacher with a continuing contract is required to formally resign the position. An end of year resignation is due to the Board no later than the 45th day before the first day of instruction in the upcoming school year.

This resignation should be sent in writing via certified mail to the President of the Board. It is recommended the teacher make a copy of this letter, with the certified mail tracking number written on the face of the letter. He or she should keep the receipt and proof of mailing. When the teacher gets the green card back, he or she should keep a copy of the green card.

The consequences for failing to resign properly include sanctions imposed by the State Board of Educator Certification if the teacher does not have good cause for the failure to comply with the resignation process and fails to comply with the new contract (which has automatically renewed for the upcoming year).

Mid-year resignations are allowed if the teacher obtains the consent of the Board.

A term contract is exactly that; employment for a definite term, not to exceed five years. A teacher has a property interest in employment for the term of the contract, but no property interest in any employment beyond the term.

Before receiving a term contract, the teacher must first have been employed under a probationary contract unless the teacher was previously employed by another district in that same position.

Yes, teachers with term contracts may be terminated mid-contract or “nonrenewed” at the end of the contract term.

With a termination, the board must have good cause or a reduction in force due to financial exigency. The board may also suspend the teacher without pay but cannot suspend the teacher for longer than the remaining school year. If the suspended teacher is not eventually discharged, then the teacher is entitled to backpay for the period of the suspension.

For nonrenewals, recent evaluations must be considered if they are relevant to the reasons for nonrenewal.

Nonrenewals are very process driven. The school board must give notice to each teacher whose contract is up for renewal if it will be renewed or not. This notice must be given no later than the 10th day before the last day of instruction. This notice must be hand delivered to the teacher on campus; however, if the teacher is not on campus that day, then it may be mailed to the teacher so long as it is postmarked no later than the 10th day deadline. If the district fails to give proper notice, then the district must employ the teacher in the same capacity the next year.

A teacher can challenge the nonrenewal by requesting a hearing within 15 days of the date the teacher received the notice of nonrenewal. If the teacher received the nonrenewal in the mail, he or she should keep the envelope to show the date received.

The process for a nonrenewal hearing depends on the size of the school district. For districts with more than 5000 students, the hearing will occur within 15 days of the request before either the school board or the board’s designee (usually, the hearing will be before a designee). At this hearing, the teacher can hire counsel, hear and put on evidence, and cross-examine witnesses. Within 15 days after the hearing, the designee must make a recommendation to the board. The board then considers the recommendation and must notify the teacher within 15 days of the date of the board meeting.

The teacher can appeal the decision of the board, with or without a hearing, to the Commissioner of Education. This type of appeal is called a “Subchapter G Appeal.” For the Commissioner to overturn the board decision, the teacher must show that the decision was “arbitrary, capricious, or not supported by substantial evidence.”

Yes. The process for quitting (or resigning) under a term contract is the same as resignations under continuing contracts.

Just as with nonrenewals, the teacher can request a hearing to determine good cause. This type of hearing must be requested within 15 days of the date the teacher receives written notice of the proposed termination.

Probationary, continuing, and term contracts may all be terminated mid-contract. The school district must prove the reasons for termination “by a preponderance of the evidence.” This hearing, which will be before a hearing examiner, is private unless the teacher makes a written request to have a public hearing. The Texas Rules of Evidence will apply; however, appraisals and evaluations are presumed to be admissible. The teacher may hire counsel, hear and put on evidence, and cross-examine witnesses.

The process for a termination hearing is expedited. Within 60 days of the request for a hearing, the hearing examiner must make a written recommendation to the board. This recommendation may be adopted, rejected, or changed. The examiner may can also propose relief, from termination to reinstatement (including back pay and benefits), but may not include attorneys’ fees or legal costs. This recommendation will be considered at the next board meeting, which should be held in compliance with the Open Meetings Act, but no later than 20 days after the board receives the recommendation. Then, the board must issue a decision within 10 days of the meeting that includes the reasons for their decisions.

For probationary contracts, there is no right to appeal. With term and continuing contracts, the board decision may be appealed to the Commissioner of Education within 20 days after the date the board announces its decision. The appeal starts with a “Petition for Review,” and a response from the district is due 20 days after the date the Petition is filed.

The Commissioner will not consider new evidence but will consider if there were procedural problems at the hearing that are not reflected in the record. The Commissioner’s decision is final and not appealable. Oral argument is not necessary but may be requested. The commissioner is not allowed to change the decision of the board unless (1) the board accepted the hearing examiner’s recommendations without modification and the decision is arbitrary, capricious, or unlawful or not supported by substantial evidence; or (2) the board modified the hearing examiner’s recommendations and the decision is arbitrary, capricious, or unlawful or the original recommendation is not supported by substantial evidence.

A teacher is entitled to the following types of leave: personal leave, assault leave, disability leave, family leave, and military leave.

Under Texas state law, each school employee is entitled to five days of personal leave with no limit on accumulation. It is within the school district’s discretion to grant additional personal leave beyond the five days. A school district cannot limit the reasons that personal leave is taken but can adopt policies managing how personal leave is used. For instance, it may limit personal leave on student assessment days, days after holidays, or the last day of school.

Assault leave allows up to a two year paid assault leave for teachers to recover from injuries suffered in a work-related assault.

An employee of a school district is physically assaulted if the person engaging in the conduct causing injury to the employee could be prosecuted for the assault or could not be prosecuted for the assault only because the person’s age or mental capacity makes that person a nonresponsible person for purposes of criminal liability.

Assault leave must be requested in writing.

Upon receiving a written request, a school district must grant assault leave immediately unless the claim is found to be invalid. The assault leave may not be deducted from accrued personal leave.

Yes, a school district must prove at least 180 calendar days of unpaid disability leave for any educator whose condition, as certified by a physician, interferes with a teacher’s work performance. Temporary disability leave covers the inability to perform work duties due to pregnancy and postnatal recovery. Temporary disability does not include child care.

Yes, a teacher must provide the school district at least 30 days written notice of his or her intent to return to work and a doctor’s statement that the teacher is fit to return to work.

No, a teacher’s contract cannot be terminated while he or she is on a leave of absence for temporary disability.

FMLA provides that teachers must be allowed up to 12 weeks of family leave for the following:

1. a serious health condition that renders the teacher unable to work;
2. birth and care of a newborn;
3. placement with employee of a child for adoption or foster care; or
4. care of child, spouse or parent that has a serious health condition.

For a teacher to be eligible for FMLA leave, she or he must have been employed for the twelve months preceding the leave and worked at least 1,250 hours during those twelve months.

FMLA can be taken on a continuous, intermittent or reduced schedule basis if the employer agrees. If the newborn child has a serious health condition or the mother has a serious health condition related to the birth of the child, the employer’s agreement is not required.

Under the FMLA, employers are also prohibited from interfering with, restraining or denying the exercise or attempt to exercise any FMLA rights, including discouraging employees from taking leave; and imposing more stringent requirements on employees taking FMLA leave.

Teachers should also provide medical proof of the need for FMLA leave. Note, the employer may request second or third medical opinions at the employer’s expense. A failure to provide a medical certification for the need for the FMLA leave could result in denial of leave. Employers may also require occasional “check-in” to verify the employee’s FMLA status and intent to return to work.

Any person with available personal leave is entitled to the use the leave for active military service. Further, a school district can adopt a policy providing paid leave of absence for employees taking leave for active military service.

Although there is no specific protection in Texas for teachers that are pregnant, federal law provides for protections for individuals that are pregnant through the Pregnancy Discrimination Act, the American Disabilities Act, and the Family Medical Leave Act.

The PDA prohibits a public, private or government contractor employer with fifteen or more employees from discriminating against an employee or applicant on the basis of pregnancy. School districts are covered under the PDA. Under the PDA, an employer may not make employment decisions because of pregnancy, childbirth, or related medical conditions.

This means an employer cannot take certain actions, including: refusing to hire, firing, demoting, denying a promotion, or making any other decision that adversely affects an employee if pregnancy, childbirth or a related medical condition is a motivating factor in the decision. The PDA also prohibits employers from singling-out pregnancy-related conditions for special procedures to determine an employee’s ability to work. Further, it means employers cannot establish arbitrary rules requiring pregnant employees to remain on leave for a predetermined amount of time.

Yes, if a teacher is temporarily unable to perform her job duties because of a pregnancy-related condition, she must be treated the same as any other temporarily disabled employee. An employer must hold open a job for a pregnancy-related absence for the same length of time as the job is held open for an employee on sick or disability leave for other medical conditions.

The ADA protects qualified individuals with a disability, including those persons regarded as having a disability, from discrimination in the workplace. The ADA also provides reasonable accommodations to qualified individuals with disabilities.

Pregnancy is not a disability under the ADA. However, under ADA various pregnancy-related complications (e.g. gestational diabetes) may render an employee disabled for purposes of ADA. A pregnant employee is not a “qualified individual with a disability,” unless she can perform the essential functions of the job with or without a reasonable accommodation. Where an employee can perform her job with accommodation, the ADA requires employers to work with the employee unless the employer can demonstrate that the accommodation would pose an undue hardship.

Reasonable accommodations for workers with a pregnancy-related disability can include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment, adjustment or modification of examinations, training materials or policies, the provision of interpreters or readers, and making existing facilities readily accessible and usable by individuals with disabilities.

The Family and Medical Leave Act (FMLA) permits eligible employees the right to take up to twelve weeks (and upwards of twenty-six weeks in some cases) of job-protected leave from work for certain “qualifying events.” The FMLA, however, does not require that the leave be paid. Consequently, employers may require their employees to utilize other types of leave such as paid time off (PTO), sick time or short-term disability, which may be paid or unpaid depending upon the employer’s policies.

Qualifying pregnancy, maternity, and paternity-related events include: the birth and care of the employee’s newborn or adopted child; placement of a child by the State for foster care; the need to care for the employee’s child with serious health condition; and a serious health condition that makes the employee unable to perform the functions of her position.

Pregnancy is not a serious health condition unless there are complicating serious medical or health conditions of the baby or mother that render the mother unable to work. In those limited cases, FMLA leave is available. Such serious health conditions include illnesses, injuries, impairments, or physical or mental conditions involving: (1) any period of incapacity due to pregnancy or prenatal care; or (2) absences attributable to pregnancy or chronic conditions, even if the employee or covered family member does not receive treatment from a health care provider during the absence (i.e. severe morning sickness).

Teachers planning to take FMLA leave following childbirth or adoption should provide at least thirty days written notice to their employer prior to taking leave. In circumstances where such notice is not possible, the employee should provide notice of the need for FMLA leave as soon as possible.

Generally, at the conclusion of a qualified leave period the teacher must reinstate the employee to her former or equivalent position, with the same terms and benefits. An equivalent position, for purposes of the FMLA, is nearly identical to the teacher’s former position in terms of pay, benefits, and working conditions, including privileges, prerequisites, and status. It must involve the same or substantially similar duties and responsibilities. The FMLA also prohibits employers from imposing rules restricting employees from returning to work for a predetermined time after childbirth.

The Patient Protection and Affordable Care Act (ACA) amended Section 7 of the Fair Labor Standards Act (FLSA) to provide that certain employees receive breaks for the purpose of pumping breast milk at work. There is no requirement, however, that these breaks be paid. School districts are covered under the ACA.

Yes, under the ACA employers are required to provide “a reasonable break time to express breast milk for their nursing child each time such employee has a need to express breast milk for one year after the child’s birth.” Additionally, teachers are entitled to “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by the employee to express breast milk.” Although an employer is not obligated to maintain a permanent, dedicated space for nursing mothers, the employer must take measures to ensure the employee’s privacy. Suitable measures might include installing partitions, curtains, door locks, or signs that designate when the space is in unavailable.

1. Know Your Rights. Teachers should fully understand what they are entitled to and what employers are prohibited from doing under the law. The Equal Opportunity Employment Commission (EEOC) has an abundance of resources available on-line. This step may also require consultation with an attorney.
2. Keep Good Documentation. Teachers should make requests and complaints related to pregnancy or leave in writing and document the employer’s response. Include names, dates, and record as much detail concerning the situation or conversation as possible. Teachers should also keep medical documentation concerning their pregnancy, childbirth or any serious health conditions of the employee or the child.
3. Follow Your Employer’s Policies for Making a Complaint. Many employers have written policies in place for making a complaint or otherwise addressing pregnancy and leave related issues. Follow the employer’s policy including the appropriate chain-of-command.
4. File a Charge of Discrimination. If the teacher believes her or she is being discriminated against because of pregnancy, childbirth or a related medical condition, he or she should file a formal complaint called a Charge of Discrimination with the nearest EEOC office or similar state agency.
5. Contact a Lawyer. There are many lawyers who have experience representing teachers in connection with securing or enforcing their rights. If a teacher suspects that his or her rights have been violated, her or she should find a local attorney who practices in the area of employment discrimination to discuss the details of the situation.

Yes. A school district cannot discharge, discipline, reduce the salary of, or otherwise penalize or discriminate against a school district employee that has jury duty. The teacher shall be paid their normal compensation during jury duty.

No, a teacher’s personal leave cannot be reduced due to jury duty.

No, a school district may not provide or offer a financial or other incentive to encourage a teacher to retire early.

No, a school district may not directly or indirectly require a teacher to contribute to a charitable organization or attend a meeting called for the purpose of soliciting charitable contributions. Nor can a school district discourage a teacher from contributing to a charitable organization or attending a meeting for the purpose of soliciting charitable contributions.

No, the individual or individuals involved in the hiring of new teachers cannot directly or indirectly ask about the religion or religious affiliation of someone applying for employment?

Yes, a person who asks about a potential teacher’s religion or religious affiliation is subject to a civil penalty of not less than $100 and not more than $500. The suit for the civil penalty must be brought by the aggrieved teacher applicant or the teacher applicant’s assignee.

Conduct indicating that an educator lacks good moral character, is a negative role model and doesn’t possess the moral fitness to be an educator includes, but is not limited to, the following:

1. Active community supervision or criminal probation;
2. Conduct that indicates dishonesty or untruthfulness
3. Habitual impairment through drugs or alcohol;
4. Abuse or neglect of student and minors, including the educator’s own children; and

Reckless endangerment of the safety of others.[1]

[1] Texas Administrative Code §249.5(b)(2)(D)

Although not an exhaustive list, the following are items can lead to discipline:

1. School or educational activities in violation of law;
2. An educator who is unworthy to instruct or supervise the youth of the state;
3. Code of ethics violations;
4. Failure to report or hindering the reporting of child abuse or the known criminal history or an educator as required by law and state board rules;
5. Contract abandonment;
6. Failure to cooperate with a Board investigation;
7. Conviction of a crime directly related to the duties and responsibilities of the education profession; or

Violation of the security or integrity of a state assessment.

The following crimes are directly related to the educator profession:

1. Crimes involving moral turpitude (improper conduct, including but not limited to: dishonesty, fraud, deceit, theft, misrepresentation, deliberate violence, base, vile or depraved acts that are intended to arouse or to gratify the sexual desire, drug or alcohol related offenses, or acts constituting abuse or neglect);
2. Crimes involving sexual or physical abuse of a minor or student or other illegal conduct with a minor or student;
3. Solicited or engaged in sexual conduct or a romantic relationship with a student or minor;
4. Any crime for which the underlying facts would support a felony conviction for possession, transfer, sale, distribution, or conspiracy to possess, transfer, sell, or distribute any controlled substance
5. Crimes involving school property or funds;
6. Crimes involving an attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle a person to hold or obtain a position as an educator;
7. Crimes that occur wholly or in part on school property or at a school-sponsored activity; or
8. Two or more crimes committed within a 12-month period that involve public intoxication, a DWI, or disorderly conduct.

The SBEC can take the following actions against an educator’s certification:

1. Place restrictions on the issuance, renewal, or holding of a certificate, either indefinitely or for a set term;
2. Issue an inscribed reprimand—formal, published censure appearing on the face of the educator’s virtual certificate
3. Issue a non-inscribed reprimand—formal, unpublished censure that does not appear on the face of the educator’s virtual certificate;
4. Suspend a certificate for a set term or issue a probated suspension for a set term
5. Revoke or cancel, which includes accepting the surrender of, a certificate without opportunity for reapplications for a set term or permanently; or
6. Impose any additional conditions or restrictions upon a certificate as deemed necessary by the SBEC.

The SBEC may take disciplinary actions against a educator’s certification based on satisfactory evidence that:

1. the person has conducted school or education activities in violation of law;
2. the person is unworthy to instruct or to supervise the youth of this state;
3. the person has violated a provision of the Educators’ Code of Ethics;
4. the person has failed to report or has hindered the reporting of child abuse pursuant to the Texas Family Code, §261.001, or has failed to notify the SBEC under the circumstances and in the manner required by the Texas Education Code (TEC), §21.006, and §249.14(d) and (e) of this title (relating to Complaint, Required Reporting, and Investigation; Investigative Notice; Filing of Petition);
5. the person has abandoned a contract in violation of the TEC, §§21.105(c), 21.160(c), or 21.210(c);
6. the person has failed to cooperate with the Texas Education Agency (TEA) in an investigation;
7. the person has failed to provide information required to be provided by §229.3 of this title (relating to Required Submissions of Information, Surveys, and Other Data);
8. the person has violated the security or integrity of any assessment required by the TEC, Chapter 39, Subchapter B, as described in subsection (g) of this section or has committed an act that is a departure from the test administration procedures established by the commissioner of education in Chapter 101 of this title (relating to Assessment);
9. the person has committed an act described in §249.14(h)(1) of this title, which constitutes sanctionable Priority 1 conduct, as follows:
   1. any conduct constituting a felony criminal offense;
   2. indecent exposure;
   3. public lewdness;
   4. child abuse and/or neglect;
   5. possession of a weapon on school property;
   6. drug offenses occurring on school property;
   7. sale to or making alcohol or other drugs available to a student or minor;
   8. sale, distribution, or display of harmful material to a student or minor;
   9. certificate fraud;
   10. state assessment testing violations;
   11. deadly conduct; or
   12. conduct that involves soliciting or engaging in sexual conduct or a romantic relationship with a student or minor;
10. the person has committed an act that would constitute an offense (without regard to whether there has been a criminal conviction) that is considered to relate directly to the duties and responsibilities of the education profession, as described in §249.16(c) of this title (relating to Eligibility of Persons with Criminal History for a Certificate under Texas Occupations Code, Chapter 53, and Texas Education Code, Chapter 21). Such offenses indicate a threat to the health, safety, or welfare of a student or minor, parent of a student, fellow employee, or professional colleague; interfere with the orderly, efficient, or safe operation of a school district, campus, or activity; or indicate impaired ability or misrepresentation of qualifications to perform the functions of an educator and include, but are not limited to:
    1. offenses involving moral turpitude;
    2. offenses involving any form of sexual or physical abuse or neglect of a student or minor or other illegal conduct with a student or minor;
    3. offenses involving any felony possession or conspiracy to possess, or any misdemeanor or felony transfer, sale, distribution, or conspiracy to transfer, sell, or distribute any controlled substance defined in the Texas Health and Safety Code, Chapter 481;
    4. offenses involving any attempt by fraudulent or unauthorized means to obtain or alter any certificate or permit that would entitle any person to hold or obtain a position as an educator;
    5. offenses occurring wholly or in part on school property or at a school-sponsored activity; or
    6. felony offenses involving driving while intoxicated (DWI);
11. the person has intentionally failed to comply with the reporting, notification, and confidentiality requirements specified in the Texas Code of Criminal Procedure, §15.27(a), relating to student arrests, detentions, and juvenile referrals for certain offenses;
12. the person has failed to discharge an employee or to refuse to hire an applicant when the person knew or should have known through a criminal history record information review that the employee or applicant had been convicted of an offense in accordance with the TEC, §22.085;
13. the person is a superintendent of a school district or the chief operating officer of an open-enrollment charter school who falsely or inaccurately certified to the commissioner of education that the district or charter school had complied with the TEC, §22.085; or
14. the person has failed to comply with an order or decision of the SBEC.

The SBEC shall permanently revoke a teaching certificate or permanently deny the application of any if contest, if after a hearing or default, it is determined that the educator or applicant:

1. engaged in any sexual contact or relationship with a student or minor;
2. solicited any sexual contact or romantic relationship with a student or minor;
3. possessed or distributed pornography;
4. was a registered sex offender;
5. committed criminal homicide;
6. transferred, sold, distributed, or conspired to possess, transfer, sell, or distribute any controlled substance, the possession of which would be at least a Class A misdemeanor, on school property;
7. intentionally, knowingly, or recklessly causes bodily injury to a student or minor when the conduct of the educator or applicant is not immune from disciplinary proceedings by TEC;
8. convicted or place on deferred adjudication for an offense for which the defendant is required to registered as a sex offender; or
9. convicted of a felony offense if the victim was under 18.

A complaint against an educator, applicant, or examinee must be filed in writing.  The complaint can be sent to the following:

Texas Education Agency

1701 N. Congress Avenue

Austin, Texas 78701-1494

Fax: 512-475-3665

Email: complaintsmanagement@tea.tx.gov

The written complaint must identify the certified educator against whom the complaint is being filed, provide specific information about the nature and substance of the alleged misconduct, state the names and addresses of any witnesses, and the name and address of the individual filing the complaint.  SBEC will not consider any complaint that does not include the name and address of the individual filing the complaint.

The SBEC must serve a petition to the certificate holders describing SBEC’s intent to issue a sanction and specifying the legal and factual reason for the sanction.  The petition must include: (1) a statement of legal authority and jurisdiction under which the disciplinary action is being sought and hearing is being held, (2) a reference to the particular sections of the statutes and rules involved, (3) a statement of the matter asserted, (4) a statement regarding the failure of the parties to reach a settlement of the matters asserted in the petition, (5) the name, current mailing address, daytime telephone number, fax number, and the petitioner’s authorized representative, and (6) if the petition seeks to impose sanctions against a certificate holder, a notification in at least 12-point boldface type that states:  If you do not file a written answer to this petition with the Texas Education Staff Agency staff WITHIN 30 CALENDAR DAYS of being served with this petition, the State Board of Educator Certification may grant the relief requested in this petition, including revocation of your certificate by default.  The matters asserted in the petition will be deemed admitted unless your written answer specifically denies each assertion pled and is filed within the prescribed time period.  If you file a written answer but then fail to attend the scheduled hearing, the State Board of Educator Certification may grant any relief requested in this petition, up to and including REVOCATION OF YOUR CERTIFICATE.  The certificate holder has 30 days to file an answer.

The answer must be submitted within 30 days.  The answer must be mailed by certified mail, return receipt requested and by regular first-class mail.  The answer must specifically admit or deny each allegation in the petition and plead any defenses.  The answer must contain the name, current mailing address, daytime telephone number, email address, and fax, if any, of the responding party and the responding party’s authorized representative.  A general denial is not a sufficient response.

The case will be referred to the State Office of Administrative Hearings.

At the end of the suspension period designated by SBEC, the individual whose certificate was suspended may submit a written request to TEA staff to reinstate the certificate, together with proof of compliance with the order of suspension and the appropriate reinstatement fee.

If a written answer is not filed within 30 days, TEA may file a request for a default judgment imposing the proposed sanctions.

Yes.  When an educator applies for reinstatement, the TEA staff will run a criminal background check on the educator and reinstatement may be denied based on any subsequent criminal history or other misconduct occurring or discovered after the effective date of the order suspending the certificate.  Further, the educator must meet all other requirements required to maintain educator certification.

Yes.  No later than the fifth day after the board receives notice that the educator has a conviction or placement in a deferred adjudication community supervision for an offense for which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure or on the conviction of a felony offense under Title 5, Penal Code, if the victim of the offense was under 18 years of age at the time the offense was committed, the board shall revoke the certificate held by the educator and provide to the educator, the agency, and any school district employing the educator a written notice of revocation and the basis of the revocation. A school district that receives the notice shall immediately remove the educator whose certificate has been revoked from campus to prevent the person from having any contact with a student and if the educator is employed under a contract, with the approval of the board of trustees, suspend without pay, provide the educator written notice that their contract is void, and terminate the employment of the educator as soon as practical.

According to Texas Penal Code Section 21.12(a), an “improper relationship” is generally described as sexual contact, sexual intercourse, or deviate sexual intercourse with a student. An improper relationship may also include online solicitation of a student.

Under Texas Penal Code Section 21.01(2) “sexual contact” means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. “Sexual intercourse” is defined under Texas Penal Code Section 21.01(3) to mean any penetration of the female sex organ by the male sex organ.  Texas Penal Code Section 21.01(1) defines “deviate sexual intercourse” to mean (1) any contact between any part of the genitals of one person and the mouth and anus of another person; or (2) the penetration of the genitals or the anus of another person with an object.

The term “educators” encompasses not only teachers, but also other school employees. In short, any school employee may commit an offense under this statute. Administrators are explicitly included as educators. Additionally, the following school employees and personnel specifically qualify as “educators” under this statute: (1) student teachers, teacher, and/or teacher trainees, (2) librarians, (3) educational aides, (4) educational diagnosticians, (5) counselors, social workers, and/or psychologists, (4) nurses and/or physicians, and (6) speech language pathologists.   Although these positions all require certificates, permits, or other credentials for employment by a school or school district, the sexual misconduct statute applies regardless whether an educator has the proper credentials for their position.

A complete list of positions may be found in Texas Education Code section 21.003. Nevertheless, it is important to note the offense of “improper sexual relationship between educator and student” may be committed by any school employee, regardless of the position he or she holds, if he or she is employed by a private or public elementary or secondary school.

The statute identifies three ways the offense may be committed.

First, a school employee commits an offense if he or she engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a student enrolled in the school in which he or she works.

Secondly, certain school employees may commit an offense if they engage in sexual contact, sexual intercourse, or deviate sexual intercourse with a person if that employee knows the person is either:

1. enrolled in any public or private primary or secondary school; or
2. a student participant in an educational activity that is sponsored by a school or school district if students are the primary participants in the activity; or

Finally, an offense is committed if a school employee engages in online solicitation of any student, regardless of the age of the student. Critically, the employee does not need to work at the same school or within the same school district for an offense to be committed. An offense also extends to student participants in school or school district-sponsored activities and students over 18 years old.

Yes. Texas Penal Code Section 21.12(b-1) provides two very narrow affirmative defenses for educators who engage in sexual relations with a student. It is a defense that the employee was the spouse of the student at the time of the offense. It is also a defense that the employee was no more than three years older than the student and, at the time of the offense, the employee and the student were in a relationship that began before the educator was employed at a school.

A school employee commits the offense of online solicitation if the person uses the internet, e-mail, text message, or other electronic message services to communicate in a sexually explicit manner or distribute sexually explicit material. A school employee also commits online solicitation if that employee uses the internet, e-mail, text message, or other electronic message services to solicit a student to meet another person (including the employee) with the intent that the student will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the employee or another person. It is not a defense that such a meeting did not occur. For more information about this criminal offense, please see Texas Penal Code Section 33.021. Sexually explicit under Texas Penal Code Section 33.021(3) means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct.

An applicant must provide an affidavit disclosing whether he or she has ever been charged with or convicted of having an inappropriate relationship with a minor. If he or she has been charged or convicted, the applicant must disclose all of the facts, including whether the incident turned out to be true or false. Importantly, an applicant is not precluded from employment if the employing entity determines the charge was false.

Failure to disclose this information when applying for employment with a school is grounds for termination of the applicant if he or she is later employed.

Under Texas Penal Code Section 21.12(b), engaging in an improper relationship between an educator and a student is a second degree felony. If an individual is convicted of a second degree felony, he or she may be imprisoned for no more than 20 years but no fewer than 2 years. In addition to imprisonment, a convicted person may be punished by a fine no greater than $10,000.00.

In addition to criminal penalties, the educator will face termination of employment with the school or school district. The educator will also lose all rights to any retirement annuities he or she has accrued during their employment with the school or school district, as well as any education certification they may hold.

A teacher may remove a student from class who has been documented by the teacher to repeatedly interfere with the teacher’s ability to communicate effectively with the students in the class or with the ability of the student’s classmates to learn, or whose behavior the teacher determines is so unruly, disruptive, or abusive, that it seriously interferes with the teacher’s ability to communicate effectively with the students in the class or with the ability of the student’s classmates to learn.[1]

[1] Texas Education Code §37.002(b)

If a teacher removes a student from class, the principal may place the student into another appropriate classroom, into in-school suspension, or into a disciplinary alternative education program.  The principal cannot return the student to that teacher’s class without the teacher’s consent unless the placement review committee determines that such placement is the best or only alternative available.[1]

[1] Texas Education Code §37.002(c)

The student may not be returned to the teacher’s class unless the teacher consents.  The teacher may not be forced to consent.

Not later than the third class day after the day on which the student is removed by the teacher or principal, the campus behavior coordinator or other appropriate administrator must schedule a conference that includes the campus behavior coordinator or other appropriate administrator, the teacher removing the student from the class, and the student.[1]

[1] Texas Education Code §37.009(a)

At the conference, the student is entitled to written or verbal notice of the reasons for removal, an explanation with the basis for the removal, and an opportunity to respond to the reasons for the removal. The student may not be returned to the regular classroom pending the conference.[1]

[1] Texas Education Code §37.009(a)

The campus behavior coordinator shall order the placement of the student for a period consistent with the student code of conduct.[1]

[1] Texas Education Code §37.009(a)

Before ordering the suspension, expulsion, removal to a disciplinary alternative education program or placement in a juvenile justice alternative education program of a student, the behavior coordinator must consider whether the student acted in self-defense, the intent or lack of intent at the time the student acted in self-defense, the intent or lack of intent at the time the student engaged in the conduct, the student’s disciplinary history, and whether a student has a disability that substantially impairs the student’s capacity to appreciate the wrongfulness of the student’s conduct, regardless of whether the decision of the behavior coordinator concerns mandatory or discretionary authority.[1]

[1] Texas Education Code §37.009(a)

Yes.  The use of force, but not deadly force, against a person is justified if the actor is entrusted with the care, supervision, or administration of the person for a special purpose and when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.[1]  The special force in the case of a public school teacher is that of controlling, training, and educating the child.

[1] Texas Penal Code §9.62

Teachers may use reasonable force not only to punish wrongful behavior but also to enforce compliance with instructional commands if it is necessary for them to efficiently discharge their responsibilities.  Any force used must be that which the teacher reasonably believes necessary to enforce compliance with the proper command issued for the purpose of controlling, training, or educating the child and to punish the child for prohibited conduct.

However, a teacher may not use physical violence against a child merely because the child is unable or fails to perform, either academically or athletically, at the desired level of ability even though the teacher considers such violence to be instruction and encouragement.  Any punishment must be reasonable and not disproportionate to the activity or offense.  When the punishment exceeds the bounds of moderation or is merely to gratify an evil passion, the teacher is guilty of assault and the assault cannot be justified on the ground that the punishment was necessary to subdue the student.

There is no set definition of reasonable force.  However, the following are factors that should be taken into consideration when determining reasonable force:

• What were the age, sex, and condition of the student?
• What was the possible influence of the student’s actions on others?
• Was the amount of force necessary to compel a change in the student’s behavior or obedience?
• Was the force disproportionate to the offense, unnecessarily degrading or likely to cause serious injury to the student?

Yes, a student has a right to self-defense and may resist a teacher’s effort to inflict immoderate punishment.

A professional employee of a school district is not personally liable for any act that is incident or within the scope of the duties of the employee’s position of employment and that involves the exercise of judgment or discretion on the part of the employee.  However, an employee can be held personally liable for use of excessive force in the discipline of students or negligence resulting in bodily injury to students.

An individual that operates, uses, or maintains a motor vehicle can be held personally liable.

A teacher cannot be subject to disciplinary for his or her use of physical force against a student to the extent that such conduct is justified under Texas Penal Code section 9.62.  Texas Penal Code section 9.62 states that “the use of force, not deadly force, against a person is justified: (1) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and (2) when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.”  The use of force has to be reasonably necessary to enforce discipline.

However, this does not prohibit a school district from enforcing a policy relating to corporal punishment and bringing a disciplinary proceeding against a teacher who violates the district policy regarding corporal punishment.

If the property was taken in good faith then the school district cannot require the teacher to pay for the cost of replacing the personal property.

Yes.  Under federal law, no teacher in a school shall be liable for harm caused by an act or omission of the teacher on behalf of the school if:

1. the teacher was acting within the scope of the teacher’s employment or responsibilities to a school or governmental entity;
2. the actions of the teacher were carried out in conformity with federal, state, and local laws, rules, and regulations in furtherance of efforts to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school;
3. the teacher, if appropriate or required, was properly licensed, certified, or authorized by appropriate authorities for the activities or practice involved in the state in which the harm occurred, where the activities were or practice was undertaken within the scope of the teacher’s responsibilities; or
4. the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of an individual harmed by the teacher.

Yes.  The federal statute does not provide immunity with respect to harm caused by a teacher operating a motor vehicle, vessel, aircraft, or other vehicle for which Texas requires the operator or owner of the vehicle, craft, or vessel to possess an operator’s license or maintain insurance.  Further, immunity will not be provided if the harm caused was due to willful or criminal misconduct, gross negligence, reckless misconduct, or conscious, flagrant indifference to the rights or safety of the individual harmed.

No.  A school district may not by policy, contract, or administrative discretion require a district employee to waive immunity.

Yes, a parent is entitled to review all teaching materials, instructional materials, and other teaching aids used in the classroom and a copy of each test administered after the test administered.

Yes, the Texas Public Information Act gives the public complete access to information about school districts and school district employees, including teachers.

The school district must protect this information if the teacher requests nondisclosure.  A teacher must file a written request to the school district no later than 14 days after beginning employment with the school district.  If a teacher fails to file a written request within 14 days, the request will still be considered timely by the Attorney General as long as it is filed before the information is requested.

The public has a right to know an educator’s salary, stipends, benefits, assignments, and years of experience.  However, the public is not entitled to information regarding charitable contributions, deductions for investment accounts or similar personal financial decisions.

The public has a right to know the courses a teacher took and the teacher’s degree.  Further, the State Board for Educator Certification posts a teacher’s certification credentials online.  However, the public is not entitled to the course grades or the examination score, unless the applicant fails the exam more than five times.

No. Pursuant to Texas Education Code section 21.355 a document evaluating the performance of a teacher is confidential. Documents that evaluate a teacher’s performance include development and appraisal records, walk-throughs, and growth plans.

Unless a school district’s policy states otherwise, a school district can read all emails sent on a school computer.  The public has the right to access emails sent in official capacity and those that reflect official school district business.  Emails that are sent on a private server that aren’t sent in an official capacity and don’t reflect official school district business the public is not entitled to access them.  However, a school district can still voluntarily disclose the personal emails.

Generally, Texas law does not require employers to allow employees to access his or her personnel file. Federal law does require employers to provide certain documents related to retirement benefits, and OSHA records, upon request.  Many schools may have policies that allow access and copies under certain circumstances.  Individuals who wish to see a personnel file should check district and school board rules regarding rules for disclosure. Upon leaving a school district, a teacher can request a copy of all documents in the employee’s file. Additionally, teachers who are employed by public schools may request copies of their personnel files under the Public Information Act.