Fall 2013

Recent Decisions

No opinions relating to pending LAF cases have been issued since publication of the Summer 2013 LAF Docket.

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Drought Rules

In Texas, older water rights take priority over newer ones. This is referred to as the prior appropriation doctrine, which is found in Texas Water Code section 11.027 (“first in time is first in right”). In 2011, the Legislature passed HB 2694 directing Texas Commission on Environmental Quality (TCEQ) to adopt drought rules that afford a preference to cities and other public water suppliers in their diversions of state water without regard to the priority of their water rights. The foundation for the legislation and the rules is that those who supply water for essential public purposes should be able to divert water needed for those purposes, temporarily during a drought, even if their water rights’ priorities might not have allowed them to divert.

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Attorney-Client Privileges

TEA has legal authority to appoint an agency monitor to participate in and report to the agency on the activities of the board of trustees or the superintendent if a school district does not satisfy accreditation criteria, academic performance standards, or financial accountability standards. In the case at issue, TEA has appointed a monitor to the Burnham Wood Charter School and has insisted that its assigned monitor be present during all of the charter school’s board meetings, including all of the board’s closed session discussions with its legal counsel, except where those discussion would involve matters where the interests of the school and the agency are adverse.

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Nonrenewal and Use of Physical Force

The LAF Board previously approved filing an amicus brief in the case of Black v. Hart ISD (See LAF Docket, Summer 2013, Recent Decisions). After the district court held in favor of the school district, upholding the board’s decision to nonrenew Black’s contract, Black appealed to the Amarillo Court of Appeals. Black argues that Texas Education Code section 22.0512, which provides immunity for teachers who use physical force against students, protects a teacher from nonrenewal, even if the district shows substantial evidence to support other reasons for nonrenewal that are unrelated to the teacher’s use of physical force. LAF has approved continuing its assistance in this case by filing an amicus brief with the court of appeals. Black v. Williams & Hart Indep. Sch. Dist., No. 07-13-00192-CV, Seventh Court of Appeals—Amarillo. LAF’s Attorney: Randall J. Cook, Hardy Cook & Hardy, P.C., Tyler.

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Exhaustion of Administrative Remedies

Are home school parents who allege a violation of the school laws of the state required to exhaust administrative remedies before filing suit against a school district and its employees?

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Professional Capacity

Are the positions of principal and assistant principal in the same professional capacity for purposes of reassignment? Jenkins v. Crosby Indep. Sch. Dist., Docket No. 043-R10-1211 (Tex. Comm’r of Educ. Proposal for Decision, Sept. 28, 2012). LAF’s Attorney: David P. Backus, Underwood Law Firm, P.C., Lubbock.

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Construction Defect Liability

Does the “contractual liability” exclusion in a Commercial General Liability policy exclude coverage for claims asserted against a contractor for breach of expressed and implied warranties, including breach of the warranty of workmanlike service? Ewing Construction Co. Inc. v. Amerisure Insurance Co., No. 12-0661 (Texas Supreme Court on certified questions from the Fifth Circuit Court of Appeals). LAF’s Attorney: Marc E. Gravely, Gravely & Pearson, L.L.P., San Antonio.

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Paperwork Reduction Act

Does requiring a teacher to write a report as part of a growth plan violate Texas Education Code section 11.164, which limits the paperwork a teacher can be required to prepare? Ortiz v. Plano Indep. Sch. Dist., Docket No. 014-R10-10-2012 (Tex. Comm’r of Educ. Proposal for Decision, May 10, 2013). LAF’s Attorney: Kelli H. Karczewski, Karczewski | Bradshaw, L.L.P., Nacogdoches.

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Bullying

Does a school district have a duty to protect a student who was the victim of bullying from self-harm under Section 504 of the Rehabilitation Act or 42 U.S.C. § 1983? Lance v. Lewsiville Indep. Sch. Dist., No. 12-41139 (Fifth Circuit Court of Appeals). LAF’s Attorney: Lisa A. Brown, Thompson & Horton, LLP, Houston.

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