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Scope and Authority Purpose

The authority to investigate school districts and charter schools is specified under Chapter 39 of the Texas Education Code. The Commissioner of Education or the Commissioner’s designee authorizes the Special Investigation Unit (SIU) to conduct a Special Investigation (SI) pursuant to TEC §§ 39.003.

SIU investigates complaints referred by TEA’s Complaints Management Division. SIU also accepts referrals from TEA program areas or executive management based on concerns identified through program area compliance monitoring functions or external referrals. SIU may also initiate investigations based on facts discovered during an already initiated investigation. This may include investigations of other LEAs.Ìý

This document contains the procedures for investigations of school districts and charter schools conducted by the Special Investigations Unit (SIU) of the Ë¿¹ÏÊÓƵ (TEA). These procedures supersede any former procedures issued by or covering SIU and pertain to all current or future investigations as of the effective date of these procedures. Current investigations include matters where a preliminary report has been issued and is pending the required informal review.Ìý Passage of these procedures is with the authority of the Commissioner of Education. These procedures are interpreted and applied at the sole discretion of the Commissioner of Education and are not subject to judicial review or otherwise intended to provide additional rights not otherwise already provided by law. These procedures do not apply to an on-site investigation conducted under TEC § 39.003.

Procedures

Part I. Initial Review

SIU conducts a preliminary inquiry and review of the facts and circumstances relating to a potential investigation. This inquiry may include obtaining additional documents or information from complainants, witnesses, other agencies, and/or the local education agency itself.

After completing its preliminary inquiry, if SIU determines a Special Investigation is warranted, SIU makes a recommendation to the Commissioner of Education or the Commissioner’s designee for final approval of the SI.

Not all preliminary inquiries result in a SI. Some inquires will be dismissed as the allegations contained within the complaint referral do not allege facts that, if true, would lend to a violation of law, rule, or policy. SIU may also suspect a violation of law, rule, or policy, but may not determine that such violation rises to the level of requiring a SI. In such event, SIU may seek to enter into an agreement with the LEA or may refer the matter to other divisions of the Ë¿¹ÏÊÓƵ for potential application of corrective actions or other sanctions.

Part II. Notification

Initial Notifications:

If a SI is authorized by the Commissioner or the Commissioner’s designee, a written notice of investigation is sent by SIU to the superintendent and all board members of the LEA.Ìý

This written notification will include:

• A copy of these SIU procedures;
• The allegation(s) or matter(s) under investigation;
• Contact information for the appropriate TEA representative to whom requests for, and delivery of, information may be directed;Ìý
• A request to provide TEA notice of representation identifying legal counsel (if applicable) and updated contact information for the LEA’s governance team (Superintendent and Board of Trustees) for future correspondence.

The initial notification may also include requests for records and data from the LEA and may also request the contact information and availability of certain witnesses. Ìý

AmendedÌýNotifications:

During a SI, SIU may obtain information prompting the already initiated SI be expanded into new areas of investigation. Should SIU choose to expand its investigation, it may provide the LEA with an amended notification describing the additional areas of investigation. The effect of multiple notices being issued in one SI is cumulative. Unless otherwise described in an amended notice, previously issued notices remain in full force and effect upon the issuance of an amended notice.

Part III.ÌýProcess of Investigation

Once a SI has commenced, SIU may perform an initial desk review of records and data provided by the LEA, any third party, or otherwise already in possession of TEA. This information includes, but is not limited to, documents, all forms of written or electronic communications, aggregated and other forms of data, and witness interviews occurring before, or during, a Special Investigation. The SIU may determine that the results of the desk review are sufficient to determine the conclusions of a preliminary report. The desk review may also prompt SIU to conduct further investigation.

SIU may, at any time during the investigation, determine that an on-site investigation is required. Notice of an on-site visit shall be provided to the LEA. Unless SIU determines that doing so could jeopardize the integrity of the investigation, SIU shall conduct a meeting with the LEA Superintendent prior to the onsite visit. An overview of the investigative process will be discussed with the superintendent or a designee at that time and a copy of procedures will be provided.

Interviews may be conducted at any time with the LEA staff, parents, students, and other persons who may possess relevant information relating to the SI. If SIU determines the need to interview a student, SIU will contact the parent or guardian of that student. Student interviews of a minor child require the written consent and presence of the parent or guardian. If the parent or guardian is unable to attend but gives written consent, the parent or guardian may designate a non-LEA related agent as a representative to be present during the interview.

The SIU investigator(s) may meet with the superintendent (or a designee) before exiting the district. During the exit conference, SIU staff will remind the superintendent the investigation is ongoing and will give the superintendent contact information for the SIU investigator(s). SIU investigator(s) will also remind the superintendent that the details of the investigation remain confidential, and that any attempts on the part of any employee or agent of the LEA to interfere with the investigation may result in additional grounds for investigation and additional sanctions.Ìý

Part IV. Cooperation of the LEA required

Special Investigations shall be conducted in such a way that allow the agency to obtain information from district employees in a manner that prevents a district or campus from screening the information.

Legal Counsel:

If the LEA is represented by legal counsel, Board Members and LEA employees presently having a managerial responsibility with a LEA that relates to the subject of the investigation, and other presently employed persons of an LEA whose act or omission in connection with the subject of the investigation may make the LEA vicariously liable for such act or omission, shall have legal representation for the LEA present, unless the LEA and its counsel otherwise provides consent to proceed with the interview without the legal counsel.Ìý This section does not apply if any interviewee elects to bring personal counsel.

For all other interviewees, legal counsel representing the LEA shall not be present during the interview.Ìý All interviewees may have legal counsel representing the interviewee in the interviewee’s individual capacity present. However, in no event will an attorney jointly representing any individual employee and the LEA be present.

Except for the ability of the LEA to provide legal counsel for certain persons, investigator(s) and the interviewee are the only individuals who may be present during an interview.

Subpoena Authority¹:

The Commissioner of Education or his/her designee may subpoena a current or former employee, agent, or official of the LEA to attend a deposition or produce documents reasonably necessary for the investigation.²

Reliance on evidence from confidential sources:

At any time prior to disclosure witnesses may request that their identity be kept confidential and not associated with portions of, or all, the information they provide during their interviews. TEA is not required to disclose the identity of any witness during the pendency of a SI.³ However, upon completion of the SI, SIU will issue a preliminary report and must disclose the identity of any witness whose statements the agency relies on in making its findings. The preliminary report is a draft and audit working papers of the investigation. See Confidentiality of Preliminary Report.

Investigators shall not sustain an allegation exclusively from confidential sources. Except when the information obtained from a confidential source is itself corroborating evidence of an allegation, investigators shall obtain corroborating evidence concerning information obtained from confidential sources before relying upon it in the preliminary or final reports, and shall consider the confidential nature of the information when assigning it its due weight.

Cooperation and candor to the Agency

The LEA will be cooperative, candid, and honest in all matters related to any stage of a SI. Willful failure on the part of any of the LEA’s employees or agents to provide any document or candidly reply to any request for information may result in a negative presumption against the LEA wherein investigators may view the contents of the withheld document or answer to the evaded question in the light least favorable to the LEA.

Knowingly supplying false information to investigators in the course of a SI may be considered interference with the investigation and may result in SIU issuing an amended notice including additional grounds for investigation and possible sanctions.

An LEA whose employee or other agent knowingly supplies false information to investigators, or who performs any act that has the effect, or attempted effect, of intimidating, retaliating against, or in any way influencing the candid testimony of any witness or otherwise interfering with a SI may be issued an amended notice expanding the SI for further investigation and potential sanctions.Ìý

Part V. Deferred Actions⁴

Prior to a special investigation report with final findings, under Tex. Educ. Code §39.003(±ð), the Commissioner of Education may require:

1. a third party, selected by the Commissioner of Education, to review programs/subjects of an investigation and submit a report identifying problems/proposing solutions;
2. the LEA to complete a Corrective Action Plan developed by the Commissioner of Education; or
3. both (1) and (2).

Part VI. Special Investigation Reports

Preliminary Report:

Upon completion of the SI, SIU will issue a preliminary report in accordance with Section 39.004 of the TEC. The preliminary report is a draft and audit working paper of the investigation.

The preliminary report will be provided to the LEA and any person TEA finds to have violated a law, rule, or policy and will:

• Provide a written report of the agency’s preliminary findings;
• Describe the factual and legal basis for each violation;
• Provide any evidence relied on by the agency in making the preliminary findings;
• Disclose the identity of any witness whose statements the agency relied on in making findings;
• Not include recommended sanctions or interventions;
• Describe the procedures for obtaining an informal review of the findings in the preliminary investigative report;
• Identify the TEA representative to whom the request for informal review may be addressed; and;
• Not later than 30 days of receipt of the Preliminary Report, the LEA may accept TEA’s findings or respond, in writing, to the Agency by submitting any items and information to be considered before the agency issues a final report to the LEA.⁵

If the preliminary report finds no violation of law, rule, or policy the TEA may issue this report as its final report. In addition, if the SIU finds no violations of law, rule, or policy, SIU may administratively close the investigation without issuing a preliminary or final report. The district will receive notice if SIU administratively closes the investigation. Any SI may be reopened by SIU at any time if it is determined to be necessary based on new or additional evidence, a new complaint, or review of data from another program area within TEA.

Confidentiality of Preliminary Report:

The preliminary report and all associated material produced by the agency in support of the report are audit working papers. The LEA may publicly release the preliminary report only if the release is approved by an affirmative vote of the board of trustees of the LEA; otherwise all evidence collected is confidential and not subject to disclosure under Chapter 552 except to a person with a legitimate interest in the investigation; or in connection with an administrative or other legal proceeding under this title.⁶

Final Report:

Following a review of the LEA’s response to the preliminary report, a final report, assignment, determination, or decision will be issued. The final report, assignment, determination, or decision may include changes or additions to the preliminary report (or action) and will recommend corrective actions and/or sanctions if appropriate.

The issuance of a final report does not preclude the agency from taking further action relating to the same transaction of events that prompted the SI should further material facts come to light that show, in the judgment of the Commissioner of Education or designee, that the LEA is in breach of any agreement, corrective action plan, or any other sanction resulting from the SI.Ìý Ìý

Part VII. Agreement of the Parties

TEA, at the recommendation of SIU and with the authority of the Commissioner of Education or designee, may enter into an agreement with the LEA at any time during the process described by these procedures. This agreement may include any terms that the agency and the LEA may agree to unless prohibited by law. A material breach of any agreement entered into between TEA and the LEA may lead SIU to reinitiate a SI based upon the underlying facts prompting the agreement. Whether a material breach of an agreement between the LEA and TEA has occurred shall be at the sole discretion of the Commissioner of Education or designee. Agreements made between an LEA and TEA are not subject to judicial review.

Part VIII. Release of Information, Referrals, Procedural Matters

SIU may refer allegations, evidence, or investigative findings to other areas of the agency, to other state or federal agencies, or to appropriate law enforcement at any time during an investigation, preliminary report, including referring the final report at the conclusion of an investigation. If the report includes suspected criminal violations, the report and the underlying evidence may be submitted to the appropriate law enforcement authority, including the county district attorney. Evidence that one or more educators violated a state or federal law may be referred to the Educator Investigations Division or to the Student Assessment Division for further review and determinations.

TEA complies with the Texas Public Information Act (TPIA) regarding the release of information in response to a request for public information. Information can only be kept confidential to the extent allowed by law. If audit working papers and drafts relating to the investigation are requested by the public, TEA will seek to withhold them from release through the Office of the Attorney General.

Inquiries received from the media will be directed to the TEA Office of Communications. Until a final report is issued, an investigation is ongoing and SIU will not release any information regarding the investigation until it is final.

A copy of these procedures will be made available to the complainant and the public via the TEA website ().

SIU staff will be trained in the above-listed procedures and will follow these procedures in conducting SIs.

Any modifications to these procedures or the complaint resolution procedures may be ratified by the Commissioner or the Commissioner’s designee at any time.

¹Tex. Educ. Code §39.004(i) and §39.0302(²¹)
²Enforceable through the Office of the Attorney General Tex. Educ. Code §39.004(Âá)
³Tex. Educ. Code §39.004(a-1)
⁴Tex. Educ. Code §39.003(±ð)
⁵Tex. Educ. Code §39.004(f)
⁶Tex. Educ. Code §39.004(d)
Ìý

effective 9/17/2021