Case Information

*0 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/10/2015 10:57:28 AM JEFFREY D. KYLE Clerk No. 03-14-00629-CV THIRD COURT OF APPEALS 4/10/2015 10:57:28 AM JEFFREY D. KYLE 03-14-00629-CV AUSTIN, TEXAS *1 ACCEPTED ^[4840513] CLERK I N T HE C OURT OF A PPEALS

F OR T HE T HIRD J UDICIAL D ISTRICT A T A USTIN , T EXAS

L OS F RESNOS C ONSOLIDATED I NDEPENDENT S CHOOL D ISTRICT AND M ICHAEL L. W ILLIAMS , THE S TATE C OMMISSIONER OF E DUCATION , Appellants ,

J ORGE V AZQUEZ ,

Appellee. AMICUS CURIAE BRIEF OF THE TEXAS AMERICAN FEDERATION OF TEACHERS D EATS D URST & O WEN , P L L . C . 1204 San Antonio Street, Suite 203 Austin, Texas 78701 (512) 474-6200 (512) 474-7896 (F AX ) Martha P. Owen State Bar No. 15369800 mowen@ddollaw.com Matt Bachop State Bar No. 24055127 mbachop@ddollaw.com OUNSEL FOR A MICUS C URIAE T EXAS A MERICAN F EDERATION OF T EACHERS *2 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

i *3 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

T EX . E DUC . C ODE § 21.207 ....................................................................................4, 9

T EX . G OV ’ T ODE § 2001.081 ..................................................................... 5, 6, 7, 11

Rules

T EX . R. E VID . 703 ....................................................................................................... 5

T EX R. E VID . 705 ....................................................................................................... 5

T EX R. E VID . 803 ....................................................................................................... 5

ii *4 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 non-

renewed 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

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.

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

“cross-examine adverse witnesses.” T EX E DUC ODE § 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,

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 T EX . R. E VID . 803(17), and

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

now codified at T EX R. E VID . 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”). T EX G OV ’ T ODE

§ 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.)

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. T EX G OV ’ T C ODE § 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. T EX G OV ’ T ODE § 2001.081. The

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

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

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 T EX E DUC ODE § 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.

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

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 T EX G OV ’ T C ODE

§ 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

*14 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.

Respectfully submitted,

D EATS D URST & O WEN , 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 OUNSEL FOR A PPELLEES 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 *16 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 Jennifer L. Hopgood

B RIM , A RNETT & R OBINETT , P.C. O FFICE O F T HE A TTORNEY G ENERAL

2525 Wallingwood Drive P.O. Box 12548

Building 14 Austin, Texas 78711-2548

Austin, Texas 78746 jennifer.hopgood@texasattorneygeneral.

mrobinett@brimarnett.com gov

Facsimile: (512) 328-4814

Clay T. Grover Stacy T. Castillo Caitlin H. Sewell

D. Craig Wood R OGERS , M ORRIS & G ROVER , L.L.P.

Elizabeth G. Neally 5718 Westheimer, Ste. 1200

W ALSH , A NDERSON , G ALLEGOS , G REEN Houston, Texas 77057

& T REVINO , P.C. cgrover@rmgllp.com

100 NE Loop 410, Suite 900 csewell@rmgllp.com

San Antonio, Texas 78216 Facsimile: (713) 960-6025

scastillo@wabsa.com

cwood@wabsa.com

eneally@wabsa.com

Facsimile: (210) 979-7024

/s/ Matt Bachop

Matt Bachop

[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. T EX G OV ’ T ODE § 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).