#101-TTC-390
#101-TTC-390 --
DOCKET NO. 101-TTC-390
ARTURO AMEZCUA + BEFORE THE STATE
+
+
V. + COMMISSIONER OF EDUCATION
+
TEXAS EDUCATION AGENCY, +
DIVISION OF TEACHER RECORDS + THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of Facts
Petitioner, Arturo Salazar Amezcua, appeals the deci-
sion by the Division of Teacher Records, Texas Education
Agency, Respondent, to deny his request for an additional
teacher permit. Respondent has counterclaimed for revoca-
tion of all of Petitioner's existing teaching credentials,
claiming Petitioner is unworthy to instruct the youth of
this state based on possession of an unspecified amount of
marijuana not more than two ounces in 1983.
On July 9, 1990, a hearing was held before Debra Ravel,
the Hearing Officer appointed by the State Commissioner of
Education. Petitioner is represented by Roger D. Hepworth,
Attorney at Law, Austin, Texas. Respondent is represented
by Terry J. Johnson, Attorney at Law, Austin, Texas.
On October 18, 1990, the Hearing Officer issued a
Proposal for Decision recommending that the State
Commissioner of Education issue an order granting
Petitioner's appeal and further ordering that Respondent
immediately issue the special education teaching permit
requested by Petitioner. No exceptions were filed.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Petitioner, Arturo Salazar Amezcua, holds Texas
Teacher Certificate No. XXX-XX-XXXX. (Pet. for Rev.;
Admitted, Resp. Orig. Ans.).
2. Petitioner is employed as an instructional team
leader by the Harris County Department of Education, Divi-
sion of Special Schools, at the Adaptive Behavior Center
West. The Center serves children with special needs who do
not function well in a standard classroom environment, in-
cluding children who are autistic, mentally retarded, and
emotionally disturbed. (Tr. 16-17).
3. Petitioner applied to Respondent for an additional
teaching permit in special education to be used while he
fulfilled the requirements for full certification. (Tr.
18).
4. On or about February 10, 1990, Petitioner received
notice from Respondent that his application for an addi-
tional teaching permit was denied and that Respondent in-
tended to pursue permanent revocation of Petitioner's exist-
ing teaching credentials, from which action Petitioner
timely perfected this appeal. (Pet. Ex. W; Pet. Notice of
Appeal and Pet. For Rev.).
5. During the pendency of this proceeding and after
Petitioner filed a Motion for Summary Judgment, Respondent
abandoned entirely the factual basis set forth in its notice
letter of February 10, 1990. Instead, Respondent alleged,
in its Original Answer and Original Counterclaim, an
entirely new and different factual basis in support of its
decision to deny Petitioner's permit and seek permanent
revocation of Petitioner's teaching credentials, to wit:
possession of marijuana in an amount not more than two (2)
ounces on one occasion in December, 1983. (Pet. Ex. W; Pet.
MSJ; Resp. Orig. Ans. and Orig. Counterclaim).
6. On or about December 14, 1983, Petitioner knowingly
and intentionally possessed a usable quantity of marijuana,
to wit: in an amount of not more than two (2) ounces.
(Resp. Ex. 1).
7. Petitioner was neither prosecuted nor convicted of
the Class B misdemeanor offense of knowingly and intention-
ally possessing a usable quantity of marijuana, to wit: in
an amount of not more than two ounces. (Record; Off. Notice
of Tex. Health & Safety Code Ann. +481.121(b)(1)).
Discussion
The only material issue is whether, as a matter of law,
possession of no more than two ounces of marijuana, in and
of itself, can support a legal conclusion that Petitioner is
"unworthy to instruct the youth of this state," in violation
of Tex. Educ. Code +13.046(a)(2).
The Commissioner of Education has considered
"unworthiness," under Tex. Educ. Code +13.046(a)(2), on a
case by case basis, in addition to and independent of the
other grounds set forth in Tex. Educ. Code +13.046(a) and
Tex. Rev. Civ. Stat. Ann. +6252-13(a) and 19 TAC +141.5.
The term "unworthy" has been defined as lack of worth and
absence of those moral and mental qualities required to en-
able one to render service essential to the accomplishment
of the object which the law had in view. Marrs v. Matthews,
270 S.W. 586 (Tex. Civ. App. -1925), and this definition has
been followed by the Commissioner of Education in previous
proceedings requiring a determination on "unworthiness."
See, e.g., Texas Education Agency, Division of Teacher
Certification v. Celum, No. 144-TTC-289 (Comm'r Educ., June
1989); Texas Education Agency, Division of Teacher Certifi-
cation v. Ramsey, No. 120-TTC-189 (Comm'r Educ., June 1989).
In the context of teacher certification proceedings,
the "object which the law had in view," Marrs, supra, is the
assumption of the duties and responsibilities of the teach-
ing profession. The State Board of Education, in 19 TAC
+141.5, lists those crimes and criminal conduct which
"relate directly to the duties and responsibilities of the
teaching profession" and authorizes the imposition of sanc-
tions therefor. Respondent's pleadings expressly disclaim
any cause of action arising under Tex. Rev. Civ. Stat. Ann.
+6252-13(a) and its implementing regulation, 19 TAC +141.5,
and rely exclusively on "unworthiness," under Tex. Educ.
Code +13.046(a)(2). Where criminal conduct by a teacher is
alleged, however, the Commissioner of Education may look to
follow 19 TAC +141.5 for guidance because it is directly on
point, provides clear standards and, consequently, clear
notice of prohibited conduct, and has the force and effect
of law. See, Sears v. Texas State Bd. of Dental Examiners,
759 S.W.2d, 748, 750 (Tex. App. --Austin 1988, no writ),
citing Lewis v. Jacksonville Bldg. Sav. and Loan Ass'n, 540
S.W.2d 307, 310 (Tex. 1976), holding "valid agency rules,
promulgated within the agency's authority, have the force
and effect of law."
The State Board of Education, in 19 TAC +141.5(b)(5),
has expressly limited application of sanctions on teachers
for possession of marijuana to felonies:
A crime may be considered to relate directly to
the duties and responsibilities of the teaching
profession:
...when the facts underlying the crime com-
mitted would support a felony conviction for
possession, transfer, sale, distribution, or
conspiracy to possess, transfer, sell , or
distribute any controlled substance as de-
fined in Texas Civil Statutes Article
4476-15...* Marijuana is a controlled substance. Tex. Health &
Safety Code Ann. ++481.002(5); 481.032(a)(3),
replacing, with no substantive change, the
former Tex. Rev. Civ. Stat. Ann. +4476.15.
*
See also, Tex. Heath & Safety Code +481.121(e), providing
that misdemeanor possession of marijuana is not a crime of
moral turpitude.
This proceeding should be carefully distinguished from
one in which a teacher attempts to instruct students while
under the influence of marijuana or is in possession of
marijuana on school grounds or at a school function, which
is prohibited in 19 TAC +141.5(b)(4):
A crime may be considered to relate directly to
the duties and responsibilities of the teaching
profession ...when the crime committed involves
conduct affecting students, parents of students,
fellow employees, or professional colleagues...
While not necessary to the decision, it is noteworthy
that Petitioner presented overwhelming evidence that he is,
in fact, worthy to instruct the youth of this state. Com-
pare, Texas Education Agency, Division of Teacher Certifica-
tion v. Friesenhahn, No. 242-TTC-486 (Comm'r Educ., July
1989); Kilian-Smith v. Texas Education Agency, Division of
Teacher Records, No. 067-TTC-1289 (Comm'r Educ., Jan. 1990),
in which convicted drug felons were found "worthy to
instruct" based on the outstanding quality of the
rehabilitation evidence presented. The special children of
the Adaptive Behavior Center West are, in fact, truly
fortunate to have the benefit of the services of this highly
competent and dedicated teacher.
The burden of proof is on Respondent to establish the
factual and legal grounds for a revocation of a license or
for the denial of a permit once the applicant shows he is
qualified. See, e.g., Texas State Bd. of Dental Examiners
v. Sizemore, D.D.S., 759 S.W.2d 114 (Tex. 1988). Respondent
has failed to make a prima facie showing of "unworthiness,"
as a matter of law, and has, therefore, failed to meet its
burden of proof.
Petitioner's appeal should be granted. Respondent's
application for an order permanently revoking Petitioner's
teaching credentials should be denied.
Conclusions of Law
After due consideration of the record, matters offi-
cially noticed, and the foregoing Findings of Fact, in my
capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Respondent, Texas Education Agency, Division of
Teacher Records, has failed, as a matter of law, to make a
prima facie showing that Petitioner, Arturo Salazar Amezcua,
is unworthy to instruct the youth of this state, in viola-
tion of Tex. Educ. Code +13.046(a)(2), based on knowing and
intentional possession of a usable amount of marijuana in an
amount of not more than two (2) ounces.
2. Petitioner, Arturo Salazar Amezcua, is worthy to
instruct the youth of this state and therefore, entitled to
retain all of his teaching credentials.
3. The request of the Respondent, Texas Education
Agency, Division of Teacher Records, for an order
permanently revoking all teaching credentials of Petitioner,
Arturo Salazar Amezcua, should be denied.
4. The appeal of the Petitioner, Arturo Salazar
Amezcua, from the denial of his request for a special educa-
tion permit, should be granted.
5. On final decision, the Texas Education Agency,
Division of Teacher Records, Respondent, should be ordered
to immediately issue the special education permit requested
by Petitioner.
O R D E R
After due consideration of the record, matters offi-
cially noticed, and the foregoing Findings of Fact and Con-
clusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that the request of the Respondent, Texas
Education Agency, Division of Teacher Records, for an order
permanently revoking all teaching credentials of Petitioner,
Arturo Salazar Amezcua, is hereby, DENIED.
IT IS FURTHER ORDERED that Petitioner's appeal be, and
is hereby, GRANTED.
IT IS FURTHER ORDERED that Respondent immediately issue
the special education teaching permit requested by
Petitioner.
SIGNED AND ISSUED this _____ day of ________________,
19_____.
_____________________________
W. N. KIRBY
COMMISSIONER OF EDUCATION
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