#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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