Spring 2015

Paperwork Reduction Act

As part of a growth plan, Sylvia Ortiz was directed by her principal to produce a written summary of what she learned from two rapport-building exercises and a reflection on how students responded to the activities.  Ortiz complained that requiring her to write these reports violated Texas Education Code section 11.164, commonly referred to as the Paperwork Reduction Act, which limits a district’s ability to require classroom teachers to prepare written information.

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Municipal Drainage Fees

State Senator Royce West of Dallas requested an opinion from the attorney general asking whether a school district is exempt from the assessment of a municipal drainage fee under the Municipal Drainage Utility Systems Act (Texas Local Government Code Chapter 552, Subchapter C).  In general, the Act gives municipalities the authority to: establish a municipal drainage utility system; provide rules for the use, operation, and financing of the system; assess, levy, and collect fees to fund the system; and provide exemptions of certain persons from its rules.

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Nonrenewal for Use of Physical Force

Hart ISD nonrenewed the contract of physical education teacher Dana Black for violating district policies that prohibited lying to her supervisors and smoking on campus.  Black challenged the district’s action, claiming that Black was immune from any disciplinary proceeding under Texas Education Code section 22.0512, which protects teachers who use physical force against a student to the extent justified under Texas Penal Code section 9.62.

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Timeliness of Grievances

This matter involves grievances filed by community members about a school district lease.  The Eanes ISD board of trustees approved a lease of real property owned by the district to a little league group at a properly-noticed public board meeting in 2011.  Subsequently, in 2013, homeowners nearby complained that the use of the property by the little league group was a nuisance because of noise, lights, and traffic.  The district denied the grievance for being untimely filed because the grievance was filed more than 15 days after the lease was entered into.

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Immunity from Breach of Contract Claims

Zachry Construction Corporation contracted to construct a wharf on the Bayport Ship Channel for the Port of Houston Authority of Harris County, Texas.  The contract made Zachry an independent contractor in sole charge of choosing the manner in which the work would be conducted.  Nine months into the project, the Port needed to make significant changes to the project, and the parties negotiated a $12 million change order.  Despite promises to the contrary made during negotiations, the Port began withholding liquidated damages for delays in completion of the project from Zachry’s payments.

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Use of Certified Estimate of Property Tax Values

This issue arises from provisions in the Texas Education Code, Texas Tax Code, and Texas Election Code, all of which govern school districts’ budget and tax rate adoption and tax ratification elections (TRE).

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Professional Capacity

Hermenia Jenkins served as an intermediate school principal in Crosby ISD since 2003.  In June 2011, she was reassigned to the position of high school assistant principal.  Jenkins filed a grievance complaining that her reassignment was an illegal change in her professional capacity and that the reassignment violated Texas Education Code section 11.202, 19 Texas Administrative Code section 150.1021, and policy DN(LOCAL), which requires her to be the instructional leader of the campus.

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Advertising in Schools

This case is about who has a right of access to school district advertising, namely the scoreboard or “jumbotron” at the high school football stadium.  In Lubbock ISD, final acceptance of advertisement bookings is subject to the approval of the superintendent in accordance with board policy GKB(LOCAL).  An organization promoting Jesus Tattoo purchased space and provided an advertisement consisting of an image of a tattooed Jesus and the website address jesustattoo.org to be placed on the jumbotron at high school football games.

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Overtime under the Fair Labor Standards Act

This case addressed the question of whether ancillary work including taking tickets, running the clock, and performing security at sporting events fall within the “occasional or sporadic” exclusion from the Fair Labor Standards Act’s overtime pay requirement for an employee who’s regular work consists of cleaning athletic facilities and parking lots and preparing fields and locker rooms for sporting events.

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Drought Rules

The issue in this case was whether the Texas Commission on Environmental Quality (TCEQ) had the authority to adopt and implement rules relating to “Suspension or Adjustment of Water Rights During Drought or Emergency Water Shortage.”  In Texas, older water rights take priority over newer ones.  This is referred to as the prior appropriation doctrine, which is found in Water Code section 11.027 (“first in time is first in right”).  In 2011, the Texas Legislature passed HB 2694 directing 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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Immunity from Breach of Contract Claims

This lawsuit arises from La Joya ISD’s contract with a third party administrator (TPA) for administrative services related to the district’s self-funded health benefits plan.  The contract between the district and the TPA contained a clause stating: “This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.”

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Exhaustion of Administrative Remedies

Parents of students attending Clint ISD filed suit against the school district claiming that the district does not equally or equitably fund students at different, comparable campuses within the district in violation of the Texas Constitution.  TASB LAF originally assisted Clint ISD in this matter by filing an amicus brief with the El Paso County District Court.

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Nonrenewal Hearings

Los Fresnos CISD nonrenewed the contract of teacher Jorge Vazquez after a parent complained that Vazquez disparaged students by making fun of their weight and appearance.  The district relied on written student statements to support the nonrenewal at the nonrenewal hearing.  On appeal to the commissioner, Vazquez argued that the district should not have considered the statements because they were inadmissible hearsay under the Texas Rules of Evidence (TRE).

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Timeliness of Grievances

While meeting with a district human resources specialist, Melissa Anzaldua, a teacher at Valley View ISD, discovered that the district had failed to pay her in accordance with the district salary schedule based on her years of teaching experience.  The human resources specialist informed Anzaldua that the human resources department would investigate the pay discrepancy but failed to report the outcome of the investigation to Anzaldua.  Almost a month after discovering the pay discrepancy and conferring with the human resources specialist, Anzaldua filed a formal grievance under Policy DGBA(LOCAL) claiming the district owed her back pay for the years during which she was underpaid.  The board denied Anzaldua’s grievance as untimely because she did not file her grievance within 15 days of the date that the human resources specialist informed her of the underpayment.  Anzaldua argued that the conversation she had with the human resource specialist was an informal grievance that tolled the deadline to file a formal grievance. The district responded that because the human resource staff member was not a supervisor, principal, or administrator Anzaldua did not properly engage in the informal grievance process.

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Exhaustion of Administrative Remedies

Michael and Laura McIntyre, parents of five home-schooled minor children, sued El Paso ISD, five administrators, and three of their own family members after the district’s attendance officer questioned whether the children’s home school education was provided in accordance with the guidelines established in Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994).  The children’s grandparents informed El Paso ISD that the McIntyres were not providing required home school education.  When the parents refused to provide any detailed information regarding the education they were providing to their children and refused to sign the district’s locally-developed home school verification form, the school district initiated truancy prosecutions.  In response, the parents sued requesting a declaratory judgment, equitable relief, and a permanent injunction against the district based on alleged deprivations of equal protection, due process, and religious liberty and malicious prosecution.  The McIntyres later dismissed their claims against the family members and three of the five district employees, leaving the district, former superintendent, and attendance officer as the only remaining defendants.

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Immunity from Breach of Contract Claims

In 1992, Shields Brothers, Inc., a farming business, sued the Engelman Irrigation District (EID), a governmental entity, alleging breach of contract.  EID asserted in defense that the trial court lacked subject matter jurisdiction because of governmental immunity, but the trial court rejected that argument relying on Missouri Pacific Railroad Co. v. Brownsville Navigation District.  In 1995, after a jury trial, the trial court rendered judgment against EID.

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Independent Educational Evaluation

The issue in this case is whether a school district can deny reimbursement to a parent under the Individuals with Disabilities Education Act (IDEA) for an Independent Educational Evaluation (IEE) that does not meet required criteria.  Parents are seeking reimbursement from the Orleans Parish School District related to the initiation and completion of an IEE of their son who is a child identified with autism under IDEA.  The parents hired a psychologist to conduct the IEE and the school district informed the parents that the IEE must follow the criteria set forth in Louisiana Bulletin 1508, Pupil Appraisal Handbook, (Texas districts use the same criteria outlined in the Louisiana Bulletin 1508, based on federal guidance.)  After receiving the completed IEE, the school district reviewed the evaluation against the criteria in Bulletin 1508 and determined that the evaluation was not in compliance with applicable criteria.  After receiving a request for reimbursement for the cost of the IEE, the district notified the parents that the IEE failed to meet required criteria and it denied reimbursement.

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Maintenance of Effort

LAF submitted comments to the U.S. Department of Education (DOE) concerning the application of the maintenance of effort (MOE) obligations under the Individuals with Disabilities Education Act (IDEA) in response to the DOE’s Notice of Proposed Rule Making (NPRM) and its proposed changes to the regulations found in 34 C.F.R. Part 300.  U.S. DOE NPRM for 34 C.F.R. § 300 [Docket ID ED-2012-OSERS-0020] RIN: 1820-AB65 Assistance to States for the Education of Children with Disabilities.  LAF’s Attorney: Chris Borreca—Thompson & Horton, LLP, Houston

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Whistleblower

May an educator who is employed under a Chapter 21 term employment contract, who receives proper notice of proposed termination or nonrenewal, refuse to request a hearing, and after the employment termination or nonrenewal occurs file a grievance and subsequent whistleblower lawsuit?  El Paso Indep. Sch. Dist. v. Kell, No. 08-14-00056-CV (Eighth Court of Appeals—El Paso).  LAF’s Attorney: Ray Viada—Viada & Strayer, The Woodlands

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