1. (a) This section shall apply in all appeals brought under the Term Contract Nonrenewal Act (Texas Education Code, §21.201 et seq.). To the extent that this section conflicts with any other sections governing proceedings before the commissioner, the requirements in this section shall prevail.

2. (b) All allegations by the teacher that the decision of the board of trustees was arbitrary, capricious, unlawful, or not supported by substantial evidence shall be decided upon a review of the record of the proceeding of the board of trustees as required by the Texas Education Code, §21.205(b); however, on the motion of either party, the hearings examiner may order that additional evidence be taken to supplement the transcript if it appears that the party has evidence to offer that is material, relevant, and not unduly repetitious, that the party, for good cause, was unable to adduce at the local hearing. Good cause for failure to secure the testimony of a witness may be demonstrated by:

   1. (1) a clear and unambiguous communication to the witness of the party's intention to call the witness at the hearing;
   2. (2) reasonable notice to the witness of the date, time, and place of the board meeting at which the testimony will be required; and
   3. (3) such reasonable follow-up measures as an ordinarily prudent person would exercise to secure the attendance of a material witness at a hearing before the board of trustees.
3. (c) In all nonrenewal cases, the school district must file a record of the proceeding before the board of trustees that includes a certified court reporter transcription of the hearing before the board of trustees; the policies on evaluation, nonrenewal, and administrative recommendations concerning nonrenewal; the notice to the employee of the proposed nonrenewal; the request for a local hearing; and all documents and exhibits filed in the local proceeding. The school district shall provide the teacher with written notice when the record of appeal is prepared and shall make the record available to the teacher for inspection. The school district shall provide the teacher with copies of all items in the record other than the transcript. A copy of the transcript shall be provided to the teacher upon request for a reasonable charge.
4. (d) The record of the proceeding filed by the school district shall be considered complete and accurate and shall be admitted into evidence before the commissioner for all purposes, unless the petitioner files objections to the record within 30 days after the date of filing of the record that set forth specifically those items that are relevant and material and that have been erroneously omitted from the record or those portions of the record that are relevant and material but that have been inaccurately transcribed. The commissioner may conduct a proceeding for the purpose of receiving evidence relevant to any such challenge to the record if it appears that the matter in dispute is material to the outcome of the appeal.
5. (e) Allegations in the petition for review that the decision of the board of trustees was arbitrary, capricious, or unlawful must allege sufficient facts that would support a holding that the board of trustees' decision was arbitrary, capricious, or unlawful, even if it should also be held that the decision was supported by substantial evidence. If such factual allegations are not made, no cause of action will be stated regarding these claims.
6. (f) Upon either party's request, the commissioner shall afford both parties the opportunity to present oral argument and/or briefs concerning the merits of the appeal.

7. (g) The commissioner of education may substitute his or her judgment for that of the board of trustees upon finding that the board of trustees' decision was arbitrary, capricious, unlawful, or not supported by substantial evidence including, but not limited to, the following circumstances:

   1. (1) where the written notice that the teacher's nonrenewal was under consideration was not given to the petitioner by April 1. Notice sent by certified mail, addressed to the last known address of the teacher, postmarked by the United States Postal Service on or before March 25, will be considered timely;
   2. (2) where the written notice to the teacher failed to state the reasons for the action under consideration;
   3. (3) where the required notice failed to state the reasons in a manner sufficient to allow the teacher the opportunity to adequately prepare a response at the local hearing to the allegations in the notice, and the teacher, at the time the teacher requested a hearing, set forth clearly in writing any deficiencies in the notice, and any such deficiencies were not promptly corrected prior to the date of the hearing;
   4. (4) where the evidence adduced at the local hearing does not support the specific reasons of which the teacher was given written notice;
   5. (5) where the teacher requested a hearing within 10 days after receiving the required notice, and the hearing was not held within 15 days after the request was received, except as provided in this subsection. The teacher may waive his or her right to be heard within 15 days by written agreement. If the school district, within five days of receiving the request for hearing, schedules the hearing for a date outside the 15-day period, the teacher will be deemed to have consented to that date, unless the teacher files an objection to that date within three days after receiving notice from the district;
   6. (6) where the school district fails to provide the commissioner with a certified transcript of the local hearings;
   7. (7) where the decision of the local board was not supported by substantial evidence that would have been admissible in an evidentiary hearing before the agency;
   8. (8) where no written evaluation of the teacher was prepared by the administration, or where the board of trustees failed to consider the administration's evaluation of the teacher prior to its decision not to renew the teacher's term contract as required by the Texas Education Code, §21.202. The board of trustees is not bound by the administrator's evaluation, but the evaluation must be considered;
   9. (9) where the reason for nonrenewal was not set forth in writing in the school district's policies as required by the Texas Education Code, §21.203(b);
   10. (10) where the nonrenewal is based on a reason contained in a policy that was adopted so recently prior to its use as a reason for nonrenewal that the teacher did not have fair opportunity to conform his or her conduct accordingly; and
   11. (11) where the board of trustees prevented the teacher from introducing at the local hearing admissible evidence that was material, relevant, and not unduly repetitious.
8. (h) Except concerning those matters specifically agreed to, a teacher does not waive any right to raise any procedural defect or substantive issue on appeal simply by participating in the hearing before the board of trustees; however, any procedural defect known at the time of the hearing and not presented by the teacher at the hearing is waived, unless good cause is shown for the failure to present the defect.

Source Note:The provisions of this §157.1071 adopted to be effective April 7, 1993, 18 TexReg 1928.