If a Texas teacher asks for a public termination hearing, can the school board close it to protect student witnesses?

Plain-English summary

A state senator asked the Attorney General whether a school board could move a teacher's termination hearing into a closed executive session, even though the teacher had asked for an open hearing, when the case involved alleged sexual harassment of students and children might have to testify. The senator's worry was real: forcing student witnesses to give that testimony in public could expose them to embarrassment and ridicule.

The Attorney General sympathized with the concern but said the law did not allow it. Two statutes pointed the same direction. Education Code section 13.112 gave a teacher facing termination the right to a public hearing if the teacher asked for one. And section 2(g) of the Open Meetings Act, while it lets a governmental body discuss the dismissal of an employee behind closed doors, expressly stops applying once that employee requests an open hearing. Put together, when the teacher demanded a public hearing, the board had to give one. Courts had already read these provisions the same way.

The senator pointed to criminal cases, where a child victim can sometimes testify on video or closed-circuit television instead of in open court. The Attorney General explained that protection comes from article 38.071 of the Code of Criminal Procedure, which applies only in a criminal trial, only to children twelve or younger, and only after a judge makes specific findings. None of that machinery carries over to a civil termination hearing that the teacher has a statutory right to keep public. The opinion also noted, in a footnote, that a separate case (Morales v. Ellen) recognizing a privacy interest for harassment victims and witnesses arose under the Open Records Act, which has no equivalent in the Open Meetings Act, and that the possibility of sensitive information coming up does not by itself let a board close a meeting. The bottom line: a board may not meet in executive session for a teacher's termination hearing when the teacher specifically asks that it be open.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The opinion itself noted that Senate Bill 7 (Acts 1993, 73d Leg., ch. 347) repealed chapter 13 of the Education Code effective September 1, 1995, so section 13.112 no longer exists in that form; the Open Meetings Act (formerly V.T.C.S. art. 6252-17) has since been recodified into the Government Code. Confirm the current statutes before relying on anything described here.

Background and statutory framework

Education Code section 13.112 governed the termination of a teacher's contract. Subsection (a) let a teacher who received notice of a proposed termination demand to be heard, and provided that the teacher "shall be given a public hearing if he wishes" (or if the board found a public hearing necessary in the public interest). Subsection (c) required the board to set the hearing before the action took effect, and provided that the hearing "shall be public unless the teacher requests that it be private." Section 2(g) of the Open Meetings Act (V.T.C.S. art. 6252-17) separately allowed a governmental body to consider the dismissal of an officer or employee in closed session, "unless such officer or employee requests a public hearing." Reading the two together, the Attorney General concluded that when a teacher makes an appropriate request for a public hearing, the district must grant it (James v. Hitchcock Indep. Sch. Dist.; Corpus Christi Classroom Teachers Ass'n v. Corpus Christi Indep. Sch. Dist.; Attorney General Opinion JM-1191 (1990)).

The Attorney General rejected the argument that the presence of child witnesses changed the result. Article 38.071 of the Code of Criminal Procedure allows testimony by closed-circuit television or video recording for a child victim of certain enumerated Penal Code offenses, but only on a judge's findings about the child's ability to testify, balancing the best interests of the child and the rights of the defendant, and only for a child twelve or younger (Code Crim. Proc. art. 38.071, §§ 1, 4). Because that procedure depends on judicial fact findings in a criminal court, it does not control a civil termination hearing the teacher is entitled to keep public. The opinion observed that official oppression (sexual harassment by a public employee) is a Class A misdemeanor under Penal Code section 39.02 but is not among the offenses enumerated in article 38.071. It also distinguished Morales v. Ellen, where a common-law privacy interest of harassment victims and witnesses was recognized under section 3(a)(1) of the Open Records Act, noting the Open Meetings Act contains no comparable exception and that sensitive subject matter alone does not authorize a closed meeting (Attorney General Opinions MW-578 (1982) and JM-595 (1986)). Accordingly, a board may not convene in executive session for a teacher's termination hearing when the teacher specifically requests that it be open.

Citations

• Educ. Code § 13.112(a), (c) (teacher's right to a public termination hearing on request)
• V.T.C.S. art. 6252-17, § 2(g) (Open Meetings Act; closed session for personnel matters unless the employee requests a public hearing)
• Code Crim. Proc. art. 38.071, §§ 1, 4 (closed-circuit or video testimony for child victims twelve or younger, on judicial findings)
• Penal Code § 39.02 (official oppression; sexual harassment by a public employee is a Class A misdemeanor)
• Open Records Act § 3(a)(1) (common-law privacy exception, raised by analogy in a footnote)
• James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701 (Tex. App.-Houston [1st Dist.] 1987, writ denied)
• Corpus Christi Classroom Teachers Ass'n v. Corpus Christi Indep. Sch. Dist., 535 S.W.2d 429 (Tex. Civ. App.-Corpus Christi 1976, no writ)
• Morales v. Ellen, 840 S.W.2d 519 (Tex. App.-El Paso 1992, writ denied)
• Attorney General Opinions JM-1191 (1990), MW-578 (1982), JM-595 (1986)

Common questions

Can a Texas school board close a teacher's termination hearing if the teacher wants it open?
No. The Attorney General concluded that under Education Code section 13.112 and section 2(g) of the Open Meetings Act, the teacher has the right to a public hearing on request, and the board cannot use the executive-session exception over the teacher's objection.

What if children have to testify about sexual harassment?
The opinion concluded that the concern for student witnesses did not let the board close the hearing. The criminal-law protections for child witnesses come from article 38.071 of the Code of Criminal Procedure, which applies only in a criminal trial, only to children twelve or younger, and only on a judge's findings.

Does the privacy of harassment victims justify a closed session?
No. The opinion distinguished Morales v. Ellen, which recognized a privacy interest under the Open Records Act, noting the Open Meetings Act has no comparable exception, and that the chance sensitive information will come up does not by itself authorize a closed meeting.

Can a board ever hold the hearing in open session on its own?
Section 13.112 also gave the board limited discretion to hold the hearing open when a public hearing is necessary in the public interest, but the question here was the teacher's own request, which the board had to honor.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0251
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0251.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 3, 1993

Honorable O. H. "Ike" Harris
Chair
State Affairs
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-251

Re: Whether a school district's board of trustees may conduct termination hearings of a teacher in executive session when a teacher specifically requests a public hearing (RQ-563)

Dear Senator Harris:

You have requested our opinion regarding whether a school district's board of trustees (the "board") may conduct a termination hearing of a teacher in executive session in those circumstances involving sexual harassment of students when the teacher specifically requests that the hearing be open to the public. You are concerned that students who may be required to testify against the teacher may be "subject to public scrutiny, embarrassment and ridicule." You contend that in order to protect the best interests of children a school district should not require public testimony by student witnesses in these circumstances. We do not believe a school board may conduct a termination hearing in executive session over the teacher's objection.

Pursuant to section 13.112 of the Texas Education Code, a teacher may request a public hearing on the proposed termination of his contract.[Footnote 1: Senate Bill 7 repeals, inter alia, chapter 13 of the Education Code, effective September 1, 1995. Acts 1993, 73d Leg., ch. 347, §§ 8.33(2). The commissioner of education is to submit to the legislature a proposed revision of the Education Code provisions repealed by section 8.33. Id. §§ 8.33, 8.34.] Section 13.112 provides in relevant part:

(a) If, upon written notification of the proposed action, the teacher desires to contest the same, he shall notify the board of trustees in writing within 10 days after the date of receipt by him of the official notice above prescribed, of his desire to be heard, and he shall be given a public hearing if he wishes or if the board of trustees determines that a public hearing is necessary in the public interest.

. . .

(c) Within 10 days after request for hearing made by the teacher, the board of trustees shall fix a time and place of hearing, which shall be held before the proposed action shall be effective. Such hearing shall be public unless the teacher requests that it be private. [Emphasis added.]

In addition, subsection 2(g) of the Open Meetings Act provides:

Nothing in this act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.

V.T.C.S. art. 6252-17, § 2(g) (emphasis added). These laws require that when a teacher makes an appropriate request for a public hearing, the school district must grant such request. See James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701 (Tex. App.--Houston [1st Dist.] 1987, writ denied); Corpus Christi Classroom Teachers Ass'n v. Corpus Christi Indep. Sch. Dist., 535 S.W.2d 429 (Tex. Civ. App.-Corpus Christi 1976, no writ); Attorney General Opinion JM-1191 (1990).

You contend that subjecting a child witness to testify in an open hearing "would not be normally permitted in a court of law" because the child would be "protected in criminal proceedings in which testimony may be given in camera to protect the best interests of the child." Although you do not provide us with information to suggest that a teacher may be subject to criminal sanctions, we assume that you are referring to article 38.071 of the Code of Criminal Procedure. Article 38.071 addresses the procedure to be followed with regard to testimony by closed circuit television or video recording of a child who is a victim of one of several enumerated offenses under the Penal Code.[Footnote 2: Section 39.02 of the Penal Code, entitled "Official Oppression," provides for criminal sanctions for sexual harassment by a public employee, and classifies an offense under that section as a Class A misdemeanor. However, official oppression is not one of the enumerated offenses in article 38.071 of the Code of Criminal Procedure.] A judge has the discretion to determine that a child is unable to testify at the trial of the offense, taking into consideration the best interests of the child, the rights of the defendant, and any other relevant factors. Code Crim. Proc. art. 38.071, §§ 1, 4. Moreover, the statute only applies to a child who is 12 years old or younger. Id. § 1. Because this statute requires findings of fact by a judge with regard to criminal procedure in a court of law, we cannot conclude that such procedure would control a termination hearing required to be public as requested by the teacher under the Education Code and the Open Meetings Act.

Normally, a board may not convene in closed session unless specifically provided for by law. See Attorney General Opinion MW-578 (1982) at 4.[Footnote 3: In Morales v. Ellen, 840 S.W.2d 519 (Tex. App.-El Paso 1992, writ denied), the El Paso Court of Appeals held that victims and witnesses had a common-law privacy interest that prohibited the disclosure of their identities and statements regarding allegations of sexual harassment. However, the Ellen court applied the common-law privacy exception to public disclosure under section 3(a)(1) of the Texas Open Records Act, id. at 524; a comparable exception is not found in the Open Meetings Act. The Open Records Act does not authorize a governmental body to conduct a meeting in closed session merely because information discussed in the meeting may be within one of its exceptions to disclosure. Attorney General Opinion JM-595 (1986) at 4-5.] Although the Open Meetings Act provides for an executive session under section 2(g), the exception does not apply if the public employee who is the subject of the meeting requests that it be open. Section 2(g) of the Open Meetings Act and section 13.112 of the Education Code do not give a school district's board of trustees the discretion to meet in executive session because a child may be a participant in any particular proceeding.[Footnote 4: Section 13.112 of the Education Code does give the board limited discretion to hold a meeting open to the public when "a public meeting is necessary [to] the public interest."] Therefore, a board of trustees of a school district may not convene in executive session for a termination hearing of a teacher when the teacher specifically requests that the hearing be open to the public.

SUMMARY

A board of trustees of a school district may not convene in executive session for a termination hearing of a teacher when the teacher specifically requests that the hearing be open to the public pursuant to section 2(g) of the Open Meetings Act and section 13.112 of the Education Code.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Loretta DeHay
Assistant Attorney General