Texas Teaching Certificate - DOC

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					DOCKET NO. 087-TTC-1194


STATE BOARD FOR                     BEFORE THE
EDUCATOR CERTIFICATION1

V.                                    COMMISSIONER OF EDUCATION


NARCISO ALANIZ                            THE STATE OF TEXAS

DECISION OF THE COMMISSIONER
Statement of the Case
      Petitioner, State Board for Educator Certification, requests that the
Commissioner take action against the Texas Teaching Certificate of Respondent,
Narciso Alaniz. Jim Thompson was the Administrative Law Judge originally
appointed by the Commissioner of Education to preside over this cause.
Subsequently, Christopher Maska was appointed substitute Administrative Law
Judge. Petitioner is represented by Magdelena Montelongo, Attorney at Law,
Austin, Texas. Respondent is represented by Arnold R. Pena, Attorney at Law,
Brownsville, Texas.
      On March 31, 1999, the Administrative Law Judge issued a Proposal for
Decision recommending that Respondent's Texas Teacher Certificate be revoked.
Exceptions were timely filed and considered; no reply was filed.
Findings of Fact
      After due consideration of the evidence and matters officially noticed, in
my capacity as Commissioner of Education, I make the following Findings of Fact:
1. Petitioner, State Board for Educator Certification, seeks to have the
Commissioner revoke the Texas Teaching Certificate of Respondent, Naciso Alaniz.
2. Respondent holds Texas Teaching Certificate No. XXX-XX-XXXX.
3. Respondent had a contract to teach high school Spanish with the Raymondville
Independent School District for the 1991-1992 school year.
4. On November 10, 1991, Respondent asked a student who lived next door whether
the student would like to have the job of washing Respondent's car. The student
was interested. Respondent and the student walked over to Respondent's house.
Respondent got a beer and offered the student a beer. Respondent and the
student entered Respondent's car. Respondent let the student drive the car.
Respondent explained how he wanted his car cleaned. Respondent and the student
returned to Respondent's home. While still in the car, Respondent asked the
student if the student wanted Respondent to perform oral sex on the student.
Respondent then touched the student's penis.
5. The student was a minor on November 10, 1991.
6. Prior to November 10, 1991, Respondent once reprimanded the student for
kissing a girl in the hall. Respondent did not further discipline the student.
7. The student told his mother about Respondent's actions on November 10, 1991.
8. Respondent resigned from his position at Raymondville Independent School
District in November 1991 at some time after November 10, 1991.
9. On February 10, 1993, Respondent was indicted for the sexual assault of the
student.
10. On June 18, 1993, Respondent was convicted of the lesser offense of assault
by contact and fined the maximum penalty of $500.
11. On July 2, 1993, the indictment for sexual assault was dismissed because of
Respondent's conviction for the lesser offense of assault by contact.
Discussion
Petitioner seeks sanctions against Respondent's Texas Teaching Certificate for
engaging in sexual contact with a minor and his related conviction for assault
by contact. Respondent denies the accusations.
Admissions
A major issue in this case concerns Petitioner's failure to timely answer
Respondent's request for admissions. Finding no good cause for this failure,
all admissions were deemed admitted except for a portion of Request for
Admission No. 14. However, a problem arises in that Respondent's answers to
Petitioner's First Request for Admissions seem to conflict with some of the
deemed admissions. This conflict is most sharp as to the issue of whether
Respondent was convicted of the crime of assault by contact. Respondent
answered Petitioner's First Request for Admissions by admitting that he was
indicted for engaging in sexual contact with a minor, that the indictment was
dismissed because he pled no contest to the lesser offense of assault by
contact, and that he was convicted of assault by contact and fined. However,
Petitioner was deemed to have admitted that Respondent had no criminal record
before November 10, 1991, that Respondent had no criminal record since November
10, 1991, and that the allegations in the indictment were not proven beyond a
reasonable doubt. The two sets of admissions may be reconciled. Respondent was
convicted of assault by contact on November 10, 1991. The admissions that make
reference to before and after November 10, 1991 do not foreclose that a
conviction occurred on November 10, 1991. The fact that an indictment alleging
sexual assault was never proven beyond a reasonable doubt does not mean that
Petitioner was not convicted of assault by contact.
Merits
The testimony in this case as to the central issue is sharply conflicting. Both
the student and Respondent admit that Respondent asked the student if he would
like to have the job of washing Respondent's car. Both admit that they walked
to Respondent's car. Both admit that they entered Respondent's car. However,
the student contends that Respondent offered him a beer, allowed him to drive
the car, asked him if he wanted Respondent to perform oral sex on him, and
touched him in an inappropriate manner. Respondent contends that he did not
offer the student a beer, did not let the student drive his car, did not offer
to perform oral sex, and did not touch the student in an inappropriate manner.
Respondent contends that they entered the car only to explain to the student the
type of detailing that he expected when his car was cleaned.
In deciding whom to believe, the other testimony adds little. It is true that
on that day the student told his mother, there were some slight discrepancies in
the student's story, and that Respondent told the student to stop kissing a girl
in the hall several weeks prior to the incident. But a prompt outcry, minor
discrepancies, and a reprimand that resulted in no punishment do not resolve
this case.
The conviction for assault by contact is significant. Assault by contact is the
crime of causing "physical contact with another when the person knows or should
reasonably believe that the other will regard the contact as offensive or
provocative." Texas Penal Code 21.01 (a)(3). This offense is a Class C
misdemeanor, which is punishable by a fine of up to $500. Texas Penal Code
 12.23. Respondent was fined $500. It is concluded that Respondent caused
physical contact with the student that he knew or reasonably should have
believed to be offensive to the student. Further, since the maximum penalty was
invoked, it is concluded that this was a clear violation of the law.
Having determined an assault by contact did occur, the question becomes whose
story is consistent with the occurrence of assault by contact. Nothing that
Respondent testified to is consistent with an assault by contact. The student's
testimony, however, is consistent with the occurrence of assault by contact. It
is concluded that the student's testimony is substantially correct and that
Respondent propositioned the student and touched the student in a sexual manner.
Such actions are wholly inconsistent with the duties of a teacher.
Conclusion
Because Respondent propositioned a student and touched him in a sexual manner,
Respondent's Texas Teaching Certificate should be revoked.
Conclusions of Law
       After due consideration of the record, matters officially noticed, and the
foregoing Findings of Fact, in my capacity as Commissioner of Education, I make
the following Conclusions of Law:
1. The Commissioner has jurisdiction to hear this cause under Texas Education
Code 13.0462.
2. Due to Respondent's conviction for assault by contact, Respondent is unworthy
to instruct the youth of this state.
3. Due to Respondent's actions in propositioning a student and touching a
student inappropriately, Respondent is unworthy to instruct the youth of this
state.
4. Respondent's Texas Teaching Certificate should be revoked.
5. Respondent shall send all originals and copies of his Texas Teaching
Certificate, in his possession, to the State Board for Educator Certification.
6. The State Board for Educator Certification shall send out notices that
Respondents Texas Teaching Certificate has been revoked.
O R D E R
       After due consideration of the record, matters officially noticed and the
foregoing Findings of Fact and Conclusions of Law, in my capacity as
Commissioner of Education, it is hereby
       ORDERED that Respondent's Texas Teacher Certificate be, and is hereby,
REVOKED; and
       FURTHER ORDERED that Respondent forward to the State Board for Educator
Certification all copies of his Texas Teacher Certificate in his possession; and
       FURTHER ORDERED that the State Board for Educator Certification notify the
public of the revocation of Respondent's Texas Teacher Certificate; and
       FURTHER ORDERED that Petitioner's request be, and is hereby, GRANTED.
       SIGNED AND ISSUED this 26th day of AUGUST, 1999.



                              _________________________________________
                              MIKE MOSES
                              COMMISSIONER OF EDUCATION
1 The State Board for Educator Certification is the successor in interest to the
Texas Education Agency, Division of Educator Preparation and Certification,
which originally brought this case.
2 This reference is to the Texas Education Code as it existed on January 1,
1995. Conforming Amendment 63 to SB 1 continues into effect Subchapter B of
Chapter 13 of the Texas Education Code.
#010-R2-994                   -1-

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