Final Report Harlandale 060719

June 7, 2019 FINAL REPORT
Ricardo Moreno, Board President

Harlandale Independent School District
102 Genevieve Street
San Antonio, Texas 78214-2997
Reynaldo Madrigal, Superintendent

102 Genevieve Street
San Antonio, Texas 78214-2997
Dear Board of Trustees, and Superintendent Madrigal,
The enclosed final report presents the findings resulting from a Special Accreditation Investigation
(SAI) conducted by the Texas Education Agency’s (TEA) Special Investigations Unit (SIU),
pursuant to the authority set forth under Texas Education Code (TEC) §39.057. The investigation
was initiated based on allegations that Harlandale Independent School District (HISD) was not in
compliance with the Governance of Independent School District, Nepotism, Contract
Procurement, Conflict of Interest/Disclosure requirements under Tex. Educ. Code §§11.051,
11.151, 11.1511, 11.1512, 11.1513, 44.031, 44.0411, Tex. Gov’t Code §§573.002, 573.041 and
Tex. Local Gov’t Code §176.003.
This final report addresses only those allegations described herein and investigated by the SIU to
date. These findings do not address all allegations raised before, during or after our investigation.
Additional investigative work may be conducted in the future to address any remaining allegations.
Furthermore, other TEA divisions may be in the process of investigating HISD or issuing other
investigative reports regarding the district.
The district and each person identified in this report as having violated a law, rule, or policy was
afforded the opportunity to request an Informal Review of the preliminary report, which was sent
to the school district on November 13, 2018, in accordance with Texas Education Code (Tex.
Educ. Code) §39.058 and 19 Texas Administrative Code (Tex. Admin. Code) §157.1123.
The TEA received a written request for an Informal Review from HISD on December 21, 2018.
TEA has considered the information provided by HISD in reaching its final findings. The attached
final report is issued in accordance with Tex. Admin. Code §157.1123.
Mailing address: Jason Hewitt, Director
Texas Education Agency
1701 N. Congress Avenue
Austin, Texas 78701
Email address: [email protected]
If you have any questions, please contact me at (512) 936-5962.
Sincerely,
Jason Hewitt, Director

Special Investigation Unit
Monitors and Conservators
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Harlandale Independent School District, CDN: 015-904
Final Report #s INV2016-09-060, INV2016-06-062, INV2017-03-051, INV2017-03-110, INV2018-09-091, INV2018-11-010
AUDIT WORK PAPERS EXCEPTION, PURSUANT TO TEX. GOV’T CODE §552.116
TEA Special Accreditation Investigation
Final Investigative Report
The Texas Education Agency (TEA) received multiple complaints alleging that Harlandale Independent
School District (HISD) is not in compliance with the laws relating to Governance of Independent School
Districts, Tex. Educ. Code §§11.051, 11.151, 11.1511, 11.1512; Nepotism, Tex. Gov’t Code §§573.002,
573.041, Tex. Educ. Code §11.1513, Harlandale ISD Board Policy DBE (Legal) 015904; Contract
Procurement, Tex. Educ. Code §§44.031, 44.0411, Tex. Gov’t. Code §2269.
In August 2017, TEA’s Special Investigations Unit (SIU) contacted Harlandale ISD’s (HISD)
Superintendent and requested documentation and information in response to these allegations. In October
2017, HISD provided TEA with the requested documentation and information. Subsequently, in February
2018, SIU conducted an on-site visit at HISD. In May 2018, HISD provided additional documentation. The
SIU investigation findings in this report are the result from the analysis of documents and interviews of
HISD Board of Trustees, current and former HISD employees. The allegations and findings are described
below resulting from the on-site inspections and extensive analysis of documents by SIU.
Allegations
1. Governance of Independent School District In 2015, the Harlandale ISD Superintendent entered into
four agreements and made payments to Terracon Consultants, Inc., without board approval, as required
by CH (Local) X and Tex. Educ. Code. §11.1511.
2. Contract Procurement Harlandale ISD has failed to follow proper procurement procedures as the
bidding and selection processes were conducted improperly for the Gillette, Vestal and Carroll Bell
Elementary Schools during fiscal year 2013-2014 and 2015-2016, in violation of Tex. Educ. Code
§§44.031, 44.0411, Tex. Gov’t. Code §2269.
3. Nepotism Several family members of the Superintendent were hired to work in the district, in violation
of Tex. Educ. Code §11.1513, Tex. Gov’t Code §§573.002, 573.041, and Harlandale ISD Board Policy
DBE (Legal) 015904.
4. Open Meeting Act Board Members engaging in unlawful exchange of text messaging and discussing
school business, in violation of Tex. Gov’t Code §551.
TEA Response to General Comments in HISD Responses to Preliminary Report
TEA acknowledges that both of Harlandale ISD’s (hereinafter, “HISD”) responses of December 21, 2018
and February 11, 2019, contain additional sections that do not correspond with the titles of sections within
TEA’s Preliminary SAI Report. TEA represents that HISD responses have been reviewed and considered
in this Final Report. However, due to overlapping, repetitive and lengthy statements within the HISD’s
responses it was not feasible to incorporate the entirety of HISD’s response, word for word, into this Final
Report, in an effort to prevent confusion and duplicity.
The TEA acknowledges HISD’s objection to the TEA Staff’s findings; to the TEA Staff’s discussion and
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analysis; and to the proposed corrective measures and sanctions described in the Preliminary SAI Report.
The TEA also acknowledges HISD’s request for an in-person meeting with either the Commissioner or
with a Commissioner-designated hearing officer at the TEA headquarters in Austin. The TEA additionally
acknowledges HISD’s request for an Informal Review to the Preliminary SAI Report, as set-forth in TEC.
§39.057(b), Special Accreditation Investigation.
A. HISD Request for In-Person Meeting
It appears that HISD has misinterpreted the rule regarding who has the right to request an in-person meeting
regarding an informal review. The right to request such meeting is set forth in Tex. Admin. Code
§157.1134(a), which states: “The Texas Education Agency (TEA) representative may require the school
district or open-enrollment charter school to meet at the TEA headquarters in Austin, Texas, or by telephone
to discuss the findings and/or provide additional information for review.” It is the TEA representative,
rather than a school district, who may require such a meeting as deemed necessary. TEA has conducted an
informal review.” Pursuant to the rule, a school district does not have a right to request an in-person meeting
with TEA. TEA does not require an in-person meeting with HISD prior to the issuance of this Final Report,
thus no in-person meeting will be scheduled at this time.
B. HISD Request for Discovery
The TEA respectfully disagrees with the District’s assertion that as a result of not receiving a response to a
discovery request set forth in its November 29, 2018 letter, HISD’s ability to adequately respond to the
Preliminary SAI Report has been compromised. Upon review of Tex. Admin. Code §157.1123(c), HISD
will find that in the informal review process, the “rules of civil procedure and evidence, including rules
prohibiting ex parte communications, do not apply.” That said, on January 23, 2018, the TEA provided
copies of the text messages referenced in this report to HISD. Furthermore, during the investigation and
during the phase of gathering and requesting documentation from HISD, numerous documents have been
collected directly from HISD, which are easily obtainable by HISD counsel. As such, HISD was fully able
to respond to the Preliminary SAI Report, as indicated by the December 21, 2018 sixty-five-page response
with voluminous supporting attachments, as well as the subsequent February 11, 2019 response.
C. HISD Challenge to Commissioner of Education Delegation of Authority

HISD claims that the November 13, 2018, Preliminary SAI Report fails to provide evidence that the SAI
was conducted within any parameters and constraints authorized by the Commissioner, if such investigation
was in fact lawfully authorized. HISD also claims that the Commissioner is required to personally conduct
HISD’s informal review, under Tex. Educ. Code §39.058. TEA respectfully disagrees with both claims.
Pursuant to Tex. Educ. Code §7.055(b)(5), the Commissioner of Education has delegated to the Deputy
Commissioner of Governance the full authority to conduct a Special Accreditation Investigation and to
approve and to sign all documents related to a SAI Investigation, Preliminary and Final Reports. The
Commissioner has also delegated full authority related to informal reviews. As legal counsel for HISD is
aware, the Commissioner of Education may delegate ministerial and executive functions to agency staff
and may employ division heads and any other employees and clerks to perform the duties of the agency.
As such, both the investigative and informal review processes are in full compliance.
D. HISD Challenge to TEA Investigation Authority
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Throughout HISD’s response, HISD asserts that TEA has failed to specifically cite provisions relating to
the Commissioners authority to investigate under Tex. Educ. Code §39.057, and specifically, that the
Commissioner did not authorize an investigation to be conducted “as the commissioner otherwise
determines necessary”. HISD argues that due to a lack of authority to investigate, various findings by TEA
must be dismissed and that SAI Findings not related to matters specifically designated by Commissioner’s
statutory authority in the Notice of SAI and Amended Notice of SAI violate the statutory limits of the
Agency’s power.
An example of HISD’s challenge is provided in the excerpt below, however, HISD appears to have
referenced Tex. Educ. Code §37.057(a)(1-15) for Tex. Educ. Code §39.057(a)(1-15):
“The matters raised by Finding No. 3 were not included in items noticed for investigation
under General Exhibits 2 and 3. SAI Findings not related to matters designated by the
Commissioner’s statutory authority violate the statutory limits of the Agency’s power. This
is especially so when relating to matters not statutorily designated for possible investigation
in the first fifteen (15) subparts of Tex. Educ. Code §37.057(a)(1-15). Because they are not
so designated here, these issues can only be investigated “as the commissioner otherwise
determines necessary”. Tex. Educ. Code §37.057(a)(16). There has been no such
determination in this investigation.”
TEA disagrees. Contrary to HISD assertions, TEA properly cited the statutory authority to conduct the
investigation and the resulting findings flow directly from that authority. As HISD legal counsel is aware,
the TEA Special Investigations Unit issued a Notice of Special Accreditation Investigation dated August
11, 2017, citing the authority to conduct the investigation under Tex. Educ. Code §39.057(15). On August
30, 2017, the TEA Special Investigations Unit issued an Amended Notice of Special Accreditation
Investigation, again citing the authority to conduct the investigation under Tex. Educ. Code §39.057(15).
At the time of the issuance of the Notice of SAI on August 11, 2017, and the Amended Notice of SAI on
August 30, 2017, Tex. Educ. Code 39.057(a)(15) was as follows: “The Commissioner may authorize special
accreditation investigations to be conducted as the commissioner otherwise determines necessary.” As such,
both the Notice of SAI and Amended Notice of SAI as issued provided proper notice to HISD, based on
the law that was in effect at issuance, regarding the authority of TEA to conduct the investigation, including
the investigation of subsequent issues discovered during and flowing from the investigation as the
commissioner otherwise determines necessary.
Research of the statutory history of Tex. Educ. Code §39.057 shows that it was amended on September 1,
2017, two days after the Amended Notice of SAI. This amendment shifted the provision that existed under
Tex. Educ. Code 39.057(a)(15) to Tex. Educ. Code §39.057(a)(16). HISD’s attempt to retroactively apply
a statute is improper.
E. Findings and Recommendations

HISD claims an adoption of the Preliminary SAI Report as a Final Report would be arbitrary and capricious,
and illegally affect and abridge the substantial rights of the District, its voters, and its Trustees. Findings in
this Final Report reflect and consider the district’s response to the Preliminary Report, if applicable, and
any Findings which are amended or retracted have been updated in this Final Report accordingly. As such,
these claims by HISD are unfounded.
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F. Comments Related to Gillette Elementary Repairs
The district responded that the focus of the criticism appears to be on the apparent rising cost of the Gillette
repairs. As the actual complaint was about this issue, TEA’s investigation initially focused on the
procurement process. However, the analysis of this issue by TEA later focused on Board Member
interaction and overreach which demonstrates the lack of collaboration among the Board.
G. Comments Related to Vestal and Carroll Bell Elementary Schools
The district responded although matters to procurement at Vestal and Carroll Bell Elementary schools are
listed as allegations in Item 2 of the Preliminary SAI Report, the Report alleges no facts whatsoever with
respect to procurement issues relating to these two schools. As the actual complaint was about this issue,
TEA’s investigation initially focused on the procurement process. However, the analysis of this issue by
TEA later focused on Board Member interaction and overreach which demonstrates the lack of
collaboration among the Board.
FINDINGS
Finding #1 The HISD Superintendent entered into four agreements and made payments to Terracon
Consultants, Inc., without board approval, in violation of CH (Local) X and Tex. Educ. Code.
§11.1511(c)(4).
HISD’s Response to Finding #1
“TEA Finding No. 1 – Terracon Consultants, Inc. Facts Relevant to TEA Finding No. 1. At all times
material to the Preliminary SAI Report, Terracon Consultants, Inc. (“Terracon”) has been a professional
engineering firm. Terracon has been licensed by the Texas Board of Professional Engineers since January
12, 2001 to offer professional engineering services within the State of Texas. (Firm # 3272). Harlandale
ISD had used the services of Terracon Consultants, Inc. (Terracon) since January 2007 when Terracon
was selected as a part of one of the multiple RFQ processes conducted by HISD. Terracon’s services to
HISD have been consistently found to be those of a highly-qualified provider of specialized
professional engineering service offered and provided at a fair and reasonable price. Terracon’s services
have satisfactorily met District needs. HISD’s prior experience with Terracon [See e.g., Exhibit
Finding 1-A] has provided a context and history of performance from which the District can and has
determined the satisfactory value of their qualifications and service.
For the engagements apparently at issue in TEA Finding No. 1 (the specific engagements have not been
identified), Terracon was identified as a vendor on an eligible list of vendors which were selected after an
RFQ process conducted in accordance with District Board Policy CH (Local). On June 17, 2013. The
HISD Board of Trustees approved
Terracon, among other vendors, for stand-by Geotechnical Engineering and Construction Materials
testing in accordance with Request for Qualifications (RFQ) 130548. As can be seen from the agenda
item recommendation, Terracon was placed upon a list of respondents “. . . to comprise a standby panel
from which District staff may choose.”
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There were six payments to Terracon during the 2014-15 school year totaling $60,925. The amounts
paid were well within the budgeted authority for such expenditures. Board adoption of a budget constitutes
the appropriation authority for expenditures of District funds for the purposes set forth in such adopted
budget. See, Tex. Educ. Code §44.006.
Similarly, at page 13 of the Preliminary SAI Report, TEA Staff alleges that the Superintendent exceeded
his authority with respect to the alleged approval of four “agreements.” Those Agreements are attached
hereto as Exhibit Finding 1-H through K. They are each for materials testing. The District identified four
Purchase Orders for these Terracon services that correspond to the four contracts. Each of the Purchase
Orders was identified as being responsive to Bid No. 101015. As explained by the Superintendent during
the investigative phase. the four PO’s should have been identified to Bid No. 130548. The delegation
of general authority with respect to the designation of a consultant off of the approved list was Board-
authorized on June 13, 2014. It is hardly surprising that Terracon was designated by HISD Staff as the
consulting engineer. On January 23, 2012, Terracon had been designated by a unanimous Board of
Trustees’ vote to serve “. . . as the consultant of record for the inspection of construction materials testing
and special services for Harlandale and McCollum High Schools Band Hall and Field House Project for
Bond 2009 . . .” The Terracon engagement was within the HISD budget for facilities for the 2014-15
fiscal year. The four contracts and corresponding POs constituted the extent of the District’s authorization
to Terracon. The checks were for payments actually made during the 2014-15 fiscal year.
B Legal Analysis of TEA Finding No. 1 As is indicated in the June 17, 2013 Agenda Item, District staff
was expressly delegated the authority to engage one or more of the consulting engineering firms on the
Board approved list. There were funds available for such purchases. The Board’s action delegating the
authority is expressly authorized by law in the provisions of Tex. Educ. Code §§44.0312(a); 11.202(d)15 and
Tex. Govt Code §2269.053.
The HISD Board, as advised by its own legal counsel, authorized the Superintendent to approve the
Terracon PO’s and contracts. At Finding #1 (page 4) and again at pages 5-6 of the Preliminary SAI
Report, TEA Staff alleges, albeit curiously without reference to the specific provisions involved, that
the Superintendent violated his authority under District Policy CH (Local) by making purchases on
behalf of the District ostensibly without required prior Board approval. District Policy CH (Local)
provides as follows: The Board delegates to the Superintendent or designee the authority to make
budgeted purchases for goods or services. However, any single, budgeted purchase of goods or services
that costs $25,000 or more, regardless of whether the goods or services are competitively purchased, shall
require Board approval before a transaction may take place. In no event shall the Superintendent enter
into contracts with attorneys, architects, auditors, or fiscal agents without prior Board approval.
As discussed above, there was a record of approvals for these transactions. The delegation of such authority
is expressly authorized by law Tex. Educ. Code §§11.1512 (c)(4) and 11.201(d)(15), Tex. Govt Code
§2269.053(a), by HISD Policy CH (Local) and in this case by specific action taken on June 17, 2013,
authorizing HISD Staff to select and contract with identified vendors for engineering services. TEA Staff
may not substitute its interpretation of HISD Board Policy CH (Local) for that of the Board which clearly
expressed its intent to delegate, unless the Board’s interpretation of its own policy was arbitrary. It was
not. A “reviewing tribunal is restricted to that record, save any extraordinary circumstances and it may
not re-weigh the evidence, find facts or substitute its judgment for that of the original tribunal.” Ysleta
Independent School District v. Meno, 933 S.W.2d 748, 751 (Tex. Civ. App. – Austin 1996 writ denied).
A local board is "best suited to be the interpreter of its own policies and the Commissioner of Education
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will not substitute his judgment for that of the District unless that decision was arbitrary, capricious or
unlawful,” San Antonio Teacher's Council v. San Antonio ISD, TEA Docket No. 270-R2-689 (Comm'r Ed.
1991); Poole v. Karnak ISD, TEA Docket No. 045-R10-1203 (Comm’r Ed. 2005).
Finally, at page 7 of the Preliminary SAI Report, TEA Staff cited an inquiry made by the District’s
Auditor as the basis for concern about the lack of Board approval. As can be seen from the attached letter
recently provided by the District’s external auditor, Mr. Rene E. Gonzalez, the CPA’s concerns from 2015
have been resolved in favor of the District. The contracts cited by Mr. Gonzalez in resolving his concerns
are attached hereto. Each of the attached four contracts are for materials engineering, testing and inspection
services which are subject to Tex. Govt Code §2269.058(a). As such, the provisions of Tex. Govt Code
§2269.058(b) direct the procurement of such services through Tex. Govt Code §2254.0004, the
Professional Services Procurement Act. Each of the contracts can in turn be linked through their purchase
order numbers to HISD Request for Qualifications (RFQ) 130548 under which the Board approved the
vendor list and delegated Board authority to staff to select vendors from the list.
For all of the foregoing reasons, the total payments to Terracon Consultants during the 2014- 15 school year
were fully authorized, properly procured, within the HISD budget, and within expressly delegated
executive authority for said purposes.”
TEA’S Informal Review of Finding #1
TEA is perplexed as to why HISD is elaborating on the selection of Terracon Consulting by HISD as a
qualified vendor pursuant to Tex. Gov’t Code §2254, there is no finding regarding this issue. What the district
fails to ascertain, however, is although HISD may have a group of qualified vendors, which included
Terracon, the qualification step does not abrogate the Board of Trustees duty in approving professional
services contracts and contracts above $15,000. In this case, the Board neither approved any of the contracts
for professional services with Terracon, nor did they approve any of the invoices/purchase orders related to
the contracts.
The process under Tex. Gov’t Code §2254 requires that only after a vendor of professional services is
qualified, that negotiation for cost of services begins and contracts are entered only after there is an agreement
on that cost. Approval of a qualified vendor by the Board does not give delegation to the Superintendent to
approve a professional services contract. The Superintendent is specifically prohibited from entering into a
professional service contract and requires Board approval. CH(Local) X.
HISD’s additional argument that because of the contract, purchase orders and subsequent payments were
“within the budget” and therefore could be approved by the Superintendent is also illogical and directly
contradicts their own procurement rules at the time of the contracts and payments.
CH (Local) X, (version prior to 09/2015) states that the HISD delegates to the
Superintendent or designee the authority to make budgeted purchases for goods or services.
However; any single, budgeted purchase of goods or services that costs $15,000 or more,
regardless of whether the goods or services are competitively purchased, shall require
Board approval before a transaction may take place.
CH(Local) X, (current as of 09/2015) states that the HISD Board delegates to the
Superintendent authority to make budgeted purchases states that the HISD delegates to the
Superintendent or designee the authority to make budgeted purchases for goods or services.
However; any single, budgeted purchase of goods or services that costs $25,000 or more,
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regardless of whether the goods or services are competitively purchased, shall require
Board approval before a transaction may take place. See HISD Exhibit 11
TASB School Board Guide to Purchasing, page 3, states “Based on this provision, if the
Superintendent purchases goods or services at a cost below the dollar amount set by the
board, the superintendent would not need to seek board approval of the contract as long as
the goods or services are provided for in the adopted budget.” See, HISD Exhibit 6.
Review of the contracts show that one contract is above $15,000 alone, and all the contracts and purchase
orders are well above $15,000 within a one-year time frame, when combined, in 2014. These facts required
the Superintendent to secure Board approval, regardless of method of procurement.
As such, the Superintendent overreached his authority when he contracted and then approved payments to
Terracon beyond his delegated authority. There are no evidentiary documents or board minutes that show
the Board delegated to the Superintendent the authority to into professional services contracts or to enter into
contracts for services which are over the allowed threshold of $15,000 without Board approval.
The Agency is not persuaded to change the substance of its findings based on the response provided by
Harlandale ISD. TEA determines that Finding One stands.
Finding #2 The HISD Board of Trustees failed to monitor district finances to ensure that the
Superintendent properly maintained the district’s financial procedures and records, in violation of Tex.
Educ. Code §§11.1511(b)(9), 11.1511(b)(15).
“Other than the facts related to Terracon discussed above, the facts relating to Jasmine Engineering
and the elementary school issues discussed below, the Preliminary SAI Report completely fails to
provide Harlandale ISD any notice of any other matters under review concerning Board financial oversight.
We do understand and will directly address issues related to the acquisition of engineering services by the
Board of Trustees. There is simply no hint of any other issue surrounding putative financial oversight
requirements in either of the two Notice Letters or in the Preliminary SAI Report to which a response
can be written. This Response and the District’s Letter of November 29, 2018 [General Exhibit 1] raise
procedural and due process issues with respect to the lack of required notice and the requirement of
a Commissioner’s authorization for review. The District stands by these objections.
Notwithstanding the lack of specifics, a few observations must be made with respect to the alleged lack of
Board oversight. The Board properly delegated authority to the Superintendent and Administrative Staff of
the District. Under express provisions of Texas Law, to wit: TEX. EDUC. CODE §§ 44.0312(a);
11.202(d)15, and TEX. GOV’T. CODE § 2269.053 a school board may delegate authority to make
purchasing decisions. Harlandale ISD District Policy CH (Local) requires, in relevant part: However, any
single, budgeted purchase of goods or services that costs $25,000 or more, regardless of whether the goods
or services are competitively purchased, require Board approval before a transaction may take place. In
no event shall the Superintendent enter into contracts with attorneys, architects, auditors, or fiscal agents
without prior Board approval. [See, General Exhibit 11, District Policy CH (Local)]. The Board’s action
taken on June 17, 2013 authorizing HISD Staff to select and contract with identified vendors for
engineering services [See, Exhibit Finding 1-C] meets all of the conditions imposed by Texas law and by
Local Policy. Terracon Consulting was on the Board-approved vendor list. The Board met its obligations
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to approve specifically identified professional vendors of engineering services and approved staff selection
from this list for specific projects. There is no lack of financial oversight shown by the selection of vendors
from this list. With respect to the selection of the other engineering firms at issue in the Preliminary SAI
Report, we will provide evidence of specific Board action with respect to the selection of such services.
There is no demonstrable lack of oversight in the attached documentation.”
HISD received the Notice of SAI dated August 11, 2017, Amended Notice of SAI dated August 14, 2017,
and Extended Notice of SAI dated August 30, 2017, that pursuant to Tex. Educ. Code §11.051, “an
independent school district is governed by a board of trustees who, as a body corporate, shall: oversee the
management of the district; and ensure that the superintendent implements and monitors plans, procedures,
programs, and systems to achieve appropriate, clearly defined, and desired results in the major areas of
district operations.” HISD was properly noticed that part of the scope of TEA’s investigation on this case
directly concerned HISD governance. The law authorizing TEA to conduct the investigation concerning the
governance of HISD includes not only contracting and procurement, but a general review of HISD financial
records. HISD’s assertion that TEA is limited or prohibited from investigating potential violations or subject
matter discovered while investigating governance issues is illogical. TEA has the authority to thoroughly
investigate any issues relating to HISD governance and act on newly discovered issues.
Additionally, HISD received notice regarding the applicability of Tex. Educ. Code 11.1511(b)(15) which
requires the board to carry out other powers and duties as provided by this code or other law. As such, Tex.
Educ. Code, §44, concerning Fiscal Management, directly relates back to the board’s requirement to
oversee the management of the district pursuant to Tex. Educ Code §11.051, and clearly addresses the
expectation of the financial oversight by the Board of Trustees and is part of the investigatory scope. For
example, Tex. Educ. Code §44.007, Accounting System, Report (a) A standard school fiscal accounting
system must be adopted and installed by the board of trustees of each school district. The accounting system
must conform with generally accepted accounting principles. (c) A record must be kept of all revenues
realized and of all expenditures made during the fiscal year for which a budget is adopted. A report of the
revenues and expenditures for the preceding fiscal year shall be filed with the agency on or before the date
set by the State Board of Education. (d) The State Board of Education shall require each district, as part of
the report required by this section, to include management, cost accounting, and financial information in a
format prescribed by the board and in a manner sufficient to enable the board to monitor the funding process
and determine educational system costs by district, campus, and program.
As a whole, TEA’s analysis of the facts of the case indicate the Board of Trustees failed to monitor district
finances to ensure that the Superintendent properly maintained the district’s financial procedures and
records.
Harlandale ISD. Based on the totality of the record, TEA determines that Finding Two stands.
Finding #3 The HISD Board of Trustees acted individually on behalf of the board, exceeded the scope
of their authority, and failed to collaborate with the district’s administration, in violation of Tex. Educ.
Code §§11.051(a-1), 11.1512(a), (b)(3), and (b)(5).
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TEA Finding No. 3 – Trustees Acting Individually.
Facts Relevant to TEA Finding No. 3.
The Preliminary SAI Report does not yield much information concerning what “evidence” TEA relied on
to conclude that Trustees “. . . acted individually on behalf of the board, exceeded the scope of their
authority, and failed to collaborate with the District’s administration.” On November 29, 2018,
Harlandale ISD, through counsel requested additional information concerning Finding No. 3. No
response has been received. Notwithstanding the lack of specifics, a few issues have arisen which can be
legally analyzed: Trustees directing reassignment of staff; Trustees questioning employees about issues
outside scope TEX. EDUC. CODE § 11.051(a-1); Failure to collaborate with Superintendent TEX.
EDUC. CODE §§ 11.0512(a), 11/151(b), 11; Trustee Contact with HISD Employees did not Violate
Law or Regulation.
Legal Analysis of TEA Fact Finding No. 3.
Trustees Directing Reassignment of Staff. Under the provisions of TEX. EDUC. CODE § 11.201(d)(2),
the authority to assign and reassign staff resides with the Superintendent. The HISD Board has reaffirmed
this provision in its own adopted local Policy. [See, General Exhibit 10, District Policy DK (Local)]. While
the Preliminary SAI Report mentions Trustee contacts with HISD Staff, there are no reported incidents in
which the Superintendent’s authority has been disregarded or that any employees were in fact reassigned
as a result of Trustee input. These vague and general allegations concerning Trustee alleged interference
with HISD operations do not rise to the standard of impermissible use of the Trustee’s position. There is
little evidence cited in the Preliminary SAI Report as to who initiated any such alleged conversations, or
in most cases, with the exception of the HR Director or the Superintendent, with whom those conversations
were held. With respect to trustee/employee communications, TEX. EDUC. CODE § 11.153(j) provides that
each Texas ISD must adopt an employment policy containing certain provisions, including: The
employment policy may not restrict the ability of a school district employee to communicate directly
with a member of the board of trustees regarding a matter relating to the operation of the district, except
that the policy may prohibit ex parte communication relating to: a hearing under Subchapter E or F, Chapter
21; and another appeal or hearing in which ex parte communication would be inappropriate pending a final
decision by a school district board of trustees. Mere conversations between employees and staff appear
to be statutorily protected. Without specific evidence that a Trustee interaction with staff resulted in
action that violated the Superintendent’s responsibilities to manage the District under Tex. Educ. Code
§11.201, the allegation of an employee/trustee interaction does not indicate any violation of law.
Trustees Questioning Employees. The examples listed at pages 8 and 9 of the Preliminary SAI Report do
not rise to the level of Board interference. The cited examples include: questioning qualifications o f
Benefits Coordinator and asking for job description and job requirements. Trustees are entitled by law, to
wit: Tex. Educ. Code §11.1512(c) and by District Policy BBE (Local) [See, General Exhibit 13, District
Policy BBE (Local)] to access virtually all District records and information when acting in their official
capacity as trustees. Asking for information concerning employee qualifications and/or job descriptions
is expressly permitted under law.
E-mailing HR Director, then discussing allegations of inappropriate student/staff relationship.
Trustees are entitled by law, to wit: Tex. Educ. Code §11.1512(c) and by District Policy BBE (Local) [See,
General Exhibit 13, District Policy BBE (Local)] to access virtually all District records and information
when acting in their official capacity as trustees. Surely, it cannot be argued that such allegations are
beyond Board purview in an era of enhanced Title IX enforcement. Trustees have a legal obligation under
Title IX, which provides in 20 U.S.C. § 1681(a), that “[n]o person in the United States shall, on the basis of
11
sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal financial assistance.” Title IX includes
express authorization of administrative processes that permit federal agencies and departments to terminate
or refuse to provide financial assistance or funding to entities that fail to comply with §1681.3. The reach
of Title IX has, however, been extended by the Supreme Court by implication. As recounted in the
Supreme Court’s opinion in Gebser v. Lago Vista Independent School District, 524 U.S. 274, 281 (1998),
the Supreme Court has, in a series of decisions, recognized implied causes of action under Title IX. In
Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court held “that Title IX is also
enforceable through an implied private right of action.” In Franklin v. Gwinnett County Public Schools,
503 U.S. 60 (1992). the Court concluded “that monetary damages are available in the implied private
action” and that “a school district can be held liable in damages in cases involving a teacher’s sexual
harassment of a student.” While Franklin “d[id] not purport to define the contours of that liability,” the
Court “face[d] that issue squarely” in Gebser, 524 U.S. at 281. In Gebser, a teacher had engaged in a
sexual relationship with one of his high school students. The Court held that “damages may not be
recovered in those circumstances unless an official of the school district who at a minimum has authority
to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent
to, the teacher’s conduct.” Faced with the potentially unlimited enterprise liability arising from Title IX
cases, Trustee vigilance over allegations of staff sexual misconduct with students is a positive thing. It is
difficult to understand how Trustee vigilance concerning these types of allegations can be construed in a
negative light and yet it was.
Trustee Failure to Collaborate with Superintendent. Disagreement over Structural Engineer
Recommendation. It is alleged that in October 2017 a single Trustee disagreed with the staff
recommendation on the selection of a structural engineer and requested an alternative recommendation
be made. Allegedly, his request was not honored, he became angry and left the particular meeting. No
attempt is made in the Report to define any applicable standard which would govern the Trustee’s
behavior and which was violated. Trustees are free to vote their conscience and to disagree with a
recommendation. Trustees are free to disagree with each other. The fact that this incident was cited in the
Report as a violation evidences a complete misunderstanding of the roles and responsibilities of Trustees.
Proposing Termination of Superintendent. It is alleged that a Trustee sought support from another Trustee
for the proposed termination of the Superintendent. It is not stated in the Report whether this alleged event
occurred at a board meeting or in some other context. Superintendents of school districts are term contract
employees. Tex. Educ. Code §21.212. Nonrenewal of Superintendents are subject to the provisions Tex.
Educ. Code §21.212. Terminations of Superintendents are governed by Tex. Educ. Code §21.211 and
Chapter 21, Subchapter F. The Trustee in question was well within his statutory authority in engaging in
the discussion alleged.
Trustees Contacting Employees. Trustees Visiting Campuses. TEA Staff has cited no authority for its
questioning of Trustee campus visits. This is likely because there is no such prohibition. District Policy
BBE (Local) expressly authorizes campus visits, but requires Trustee adherence to posted campus
requirements for visitation. The record does not identify how the alleged campus visit was purportedly
beyond the Trustee’s role as a Board member. However, given the breadth of the right to information and
campus visits set forth at Tex. Educ. Code §11.1512(c) and by District Policy BBE (Local), it is difficult
to see how access to information could be denied or violates any applicable standard.
Trustee-HR Director Contact. See discussion under Item IV(4)(B)(ii), above. General Discussion of Board
Governance Issues. It is the apparent position of the Agency the entire HISD Board of Trustees as a body,
can violate the provisions of Tex. Educ. Code §11.051(a-1) when an individual Board member has
discussion with a District staff about District business or visits a campus. The Report appears to condemn
the entire Board based upon actions of single Trustees whose actions, by definition, could only be made in
12
that Trustee’s individual capacity. Such acts do not violate Tex. Educ. Code §11.051(a-1) and any finding
otherwise places undue restraints upon individual Trustee behaviors.
From the small amount of information which can be gleaned from the Preliminary SAI Report, the matters
under review are not alleged to have been conducted in connection with a Chapter 21 hearing nor any other
appeal or hearing before the Board as a body. Contrary to TEA Staff assertions, clear provisions of the
Texas Education Code expressly require District Policy to allow conversations between a Trustee and a
school employee. The Report seems to propose that an individual employee may have been disturbed about
the possibility of the Trustee’s involvement. However, the employee’s subjective belief about the propriety
of the Trustee’s conduct must yield to clear legal authority. The Commissioner and the TEA are required
to uphold the law. The notion that the Trustee somehow violated his or her statutory duties as a trustee by
conversing with employees under circumstances expressly permitted by statute is without merit and must
be dismissed. A board may act only by majority vote of the members present at a meeting held in
compliance with Tex. Govt. Code Chapter 551, at which a quorum of the board is present and voting. Tex.
Educ. Code § 11.051(a-1) provides: Unless authorized by the board, a member of the board may not,
individually, act on behalf of the board. The board of trustees may act only by majority vote of the members
present at a meeting held in compliance with Chapter 551, Government Code, at which a quorum of the
board is present and voting. The board shall provide the superintendent an opportunity to present at a
meeting an oral or written recommendation to the board on any item that is voted on by the board at the
meeting.
The unsupported Agency averment that one or more individual HISD employees may have subjectively felt
pressure by having to deal with a Trustee is irrelevant. Here, the question is whether there is any objective
evidence to demonstrate that a Trustee acted improperly. There is no evidence whatsoever of improper
behavior. There is no evidence that the Trustee invoked pressure on the Superintendent or other school
officials. There is no cited evidence that any discussion led to Board, employee, or Superintendent actions.
The Preliminary SAI Report completely fails to provide Harlandale ISD notice of the nature of the matters
of review. Other parts of this response have raised procedural issues with respect to the lack of required
notice and the requirement of a Commissioner’s authorization for review. Those arguments are again
incorporated here and throughout this Response.
Additional Analysis of Alleged Board Dysfunction -Responsive to Allegations on Report Page 12 Possibly
Relevant to Findings 2 and/or 3. In its enumeration of the provisions of applicable law, in SAI Findings 2
and 3 and in its Analysis and Summary Sections at pages 11-14 of the Preliminary SAI Report, TEA Staff,
without citing specifics, has found purported violations, of Tex. Educ. Code §11.151(b). It is fair to say
that the Report, taken as a whole, constitutes an effort to second-guess specific decisions made by the HISD
Board of Trustees. This is especially so with regard to the Board’s selection of engineering consulting firms
to be utilized for assistance with the development and implementation of multiple capital improvement
projects authorized by several bond issues.
The Preliminary SAI Report states, at page 12: “The evidence reviewed by TEA demonstrates the
dysfunction within the HISD administration and lack of collaboration within the Board of Trustees and with
the Superintendent, in violation of Tex. Educ. Code §11.1512(a), (b)(3), and (b)(5), which requires the
Board of Trustees to work together to provide educational leadership for the district, including leadership
in developing the district vision statement and long range education plans, and shall support the professional
development of principals, teachers and other staff.”
Pursuant to Tex. Educ. Code §11.051(a-1), “unless authorized by the board, a member of the board may
13
not, individually, act on behalf of the board. The board of trustees may act only by majority vote of the
members present at a meeting held in compliance with Chapter 551, Government Code, at which a quorum
of the board is present and voting. The board shall provide the superintendent an opportunity to present at
a meeting an oral or written recommendation to the board on any item that is voted on by the board at the
meeting.” In accordance with Tex. Educ. Code §11.1512(a), and (b)(3), and (b)(5), the Board of Trustees
and the superintendent are required to work together to provide educational leadership for the district,
including leadership in developing the district vision statement and long-range education plans, and shall
support the professional development of principals, teaches, and other staff. The evidence provided to TEA
demonstrates the dysfunction within the HISD administration that results from this lack of collaboration.
TEA’s finding of Board Member overreach stems from SIU Investigators interviewing the Board of
Trustees, the Superintendent, the former Superintendent, employees of the district, documentation and
electronic communications. Based on the interviews, documents and electronic communications, SIU
investigators determined that Trustees C and G acted outside the scope of their authority and/or for their
personal benefit by frequenting the district campuses, directly contacting and questioning district employees
about their duties, intimidating them, interfering with construction projects, and disrupting the day-to-day
operations of the District in violation of Tex. Educ. Code §11.051(a-1). HISD Board members do not have
the authority to act on their own accord to investigate matters which the Board as a body corporate has not
authorized. Board members are not permitted to individually exercise a perceived power based on the mere
fact they are a Board member.
The TEA Final Report provides many examples of overreach, not mere conversations, by Trustees, that
raised to the level of violations of failing to collaborate with the district’s administration and that were not
within the given authorization to act collaboratively as an elected school board, in violation of Tex. Educ.
Code §11.1512(a), and (b)(3), and (b)(5), Tex. Educ. Code §11.051(a-1).
For HISD to state that Board and Committee minutes constitute the official record of all actions of the HISD
Board of Trustee’s is a misleading. The Board has no incentive to record actions that are not required to be
recorded by statute if those actions show discord and conflict among the Board. HISD statement shows
disregard for the hardworking, upstanding citizens and district employees that provided testimony to the
TEA Investigators during their onsite visit. A review of board minutes and documents provided to TEA,
investigators confirmed that the Board of Trustees has consistently been divided on two critical issues: the
repair of a pier(s) to support the structure at Gillette Elementary School and 2) retaining and overpayment
of an outside contractor for the oversight of construction projects, instead of a more cost-effective in-house
construction oversight.
TEA references severe concerns of individual Board overreach as well. HISD minimizing the threats made
against the Superintendent by one former, and one current, Board member is perplexing. The
Superintendent, while in his HISD campus office, was threatened that he would lose his job if he did not
follow their directive to terminate the Assistant Supervisor of Maintenance/Operations. These threats
represent the cumulation of ongoing problems between various HISD Board members and the
Superintendent. As a result of these threats, the Superintendent resigned in August 2012.
Additional examples of overreach concern a board member sending unprofessional emails to the
Superintendent on Sunday, appearing in Human Resources (HR) unannounced, calling and texting the
office of the HISD Executive Director of Human Resources directly and questioning the qualifications of
the HISD Benefits Coordinator, requesting job description and job requirements under the guise of threat,
emailing the HISD Executive Director of Human Resources regarding an inappropriate relationship
14
between a coach and a student that was not before the Board, and raising his voice saying the incident was
kept quiet because the student was a former Board Member’s granddaughter.
Harlandale ISD. TEA determines that Finding Three stands
Finding #4 The HISD Board of Trustees as a quorum held meetings through electronic means (group
text messaging) and deliberated district business but failed to conduct these meetings as open to the public,
required in Tex. Gov’t Code §551.002. The HISD Board of Trustees written electronic communications
(group text messaging) did not meet any exceptions from the definition of meeting or deliberation pursuant
to Tex. Gov’t Code §551.006, and thus failed to meet the open meetings requirements of the Texas Open
Meetings Act, Tex. Gov’t Code, Chapter 551.

LEGAL ANALYSIS OF ALLEGED OPEN MEETI NGS ACT ISSUES
A. THE TEA ALLEGATIONS
As of January 28, 2019, Harlandale ISO has received 21 pages of unattributed telephone text message
screenshots in response to discovery requests set forth on November 29, 2018 and December 20, 2018.
The TEA Staff appears to be alleging that the proffered text message communications violate the Open
Meetings Act. In fact, the January 28. 2019 TEA letter does not offer any insight into the Agency's
analysis. The January 28. 2019 letter provides no analysis whatsoever. Instead. the letter references TEA
Finding No. 4 from the November 13, 2018 Preliminary SAI Report, which provides: Finding #4 The
HISD Board of Trustees as a quorum held meetings through electronic m e ans (group text
messaging) and deliberated district business but failed to conduct these meetings as open to the
public, required in Tex. Gov't Code §551.002. The HISD Board of Trustees written electronic
communications (group text messaging) did not meet any exceptions from the definition of
meeting or deliberation pursuant to Tex. Gov't Code §551.006, and thus failed to meet the open
meetings requirements of the Texas Open Meetings Act, Tex. Gov't Code, Chapter 551. At page 9
of the November 13, 2018 Preliminary SAI Report, TEA Staff provides the following: Review of
electronic communications (group texts) between HISD Board of Trustees on August 18, 2017,
September 22, 2017, and December 30, 2017, show a quorum of the Board conducted a meeting via
group text, deliberated HISD public business and public policy over which the Board has
supervision or control, which was not open to the public. These electronic communications
exchanged information and deliberated regarding city inspection delays, potential delays of a campus
opening, district employee work schedules and pay, curriculum issues, and parent complaints. Finally,
at Page 6 of the November 13.2018 Preliminary SAI Report, TEA Staff cites Tex. Gov't. Code §§ 551.002
and 55 l .006(a) as the statutes which were allegedly violated by the text messages.
B. THE DESCRIBED TEXT MESSAGING

TEA identifies five different and apparently discrete dates upon which Open Meetings Act violations
are alleged to have occurred. A fair reading of the TEA staff s January 28, 2019 data transmission
would lead us to conclude that the alleged violations are to be found in the attached 21 pages of text
messages, or not at all. The attached communications are the as "Notice” to Harlandale ISD or the
underlying facts relied upon by TEA to support an alleged violation. By date, the transmissions can be
summarized as follows:
15
Thursday, September 21, 2017
A text sent by David Abundis about phone calls he received regarding freshman as starting quarterback.
The recipients of the Abundis text are not identified but include Christina Carrillo and six other
recipients. The text did not propose or advocate any Board action. A possible response to the Abundis
text was sent on September 22, 2017 from Mancha stating that he had relayed similar complaints to
Mr. Madrigal, the Superintendent. It appears that Mr. Mancha was the only person to respond to the
Abundis text concerning football.The Mancha text was identified as a "group conversation," but the group
is not identified.
Friday, September 22, 2017
Christina Carrillo sent a text regarding human trafficking book assigned for a freshman high school student.
The text did not indicate the specific addressees, although in the text Ms. Carrillo stated she was
addressing "all my colleagues." The text did not propose or advocate any Board action. David Abundis
indicated that according to reviews, the text was high school appropriate. Mr. Abundis did not propose
or advocate any Board action. Ricardo Moreno asked for what grade was the reading assigned. Mr.
Moreno merely asked a question. He did not propose or advocate any Board action. Mr. Tejeda said the
group should not discuss unless in a meeting. He did not propose or advocate any Board action. Mr.
Mancha responded to Ms. Carrillo "good point" and that parents should have been notified "that is the
way we recommend it to be done." There was no proposal for Board action proposed or discussed.
Saturday, December 30, 2017
In a text apparently addressed to Ms. Camillo plus 4 additional unnamed individuals, Mr. Abundis said
he would hold his response until next week and happy New Year. There is no indication as to what the
matter under consideration is. There is no indication that the matter involved District business
whatsoever. Ms. Carrillo responded to an unidentified remark or question, that the matter did not involve
votes. Ms. Camillo also requested that Mr. Tejeda stop sending private texts.
Tuesday, May 8, 2018
Text from Mr. Tejeda to Ricardo Moreno only stating he would not be at the meeting. No deliberation
occurred. There was no participation by trustees in a number that even approached a quorum. No matter
discussed except Mr. Tejeda's absence.
Saturday, August 18, 2018

Mr. Gerardo Soto, the HISD Executive Director of Operations, sends a group text to report that City
Building Inspector did not show up for a scheduled inspection, so teachers and staff could not report to
work over the weekend. Superintendent Madrigal contacted a city council member and city manager to
have school inspection raised to a priority. Responses to this text message were sent to the group from
Jesus Tejeda and Christina Camillo. No deliberation,jjustthreats about reporting open meeting violations.
Then a colloquy ensued between Ms. Carrillo and Mr. Tejeda as to whether TEA should be notified.
Zeke Mendoza just offered a thumbs up and a picture of trustees. But when asked to talk more, he
declined.
Separate Saturday, August 18, 2018

There were additional texts between Ricardo Moreno and Mr. Tejeda only. Mr. Moreno and Mr. Tejada
discussed whether there would be overtime for teachers and staff and when the inspector would come
16
back. Mr. Tejeda advocated patience for the project. In all of the conversation, no Board action was
proposed or discussed. No other trustees were participants in this text conversation.
C. THE TEXAS OPEN MEETING ACT

Prior to an examination in detail of the merits of the TEA Staff’s allegations , a review of the relevant
legal compliance standards governing the Open Meetings Act is necessary. In general, every regular,
special, or called meeting of a governmental body shall be open to the public. Tex.Gov;t Code §551.002.
A meeting is:
(A) a deliberation between a quorum of a governmental body, or between a quorum of a
governmental body and another person, during which public business or public policy over which
the governmental body has supervision or control is discussed or considered or during which the
governmental body takes formal action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the governmental body is
responsible;
(ii) at which a quorum of members of the governmental body is present; hat has been
called by the governmental body; and
(iii) at which the members receive information from, give information to, ask questions
of, or receive questions from any third person, including an employee of the governmental
body, about the public business or public policy over which the governmental body has
supervision or control.
The term does not include the gathering of a quorum of a governmental body at a social function
unrelated to the public business that is conducted by the body, the attendance by a quorum of a
governmental body at a regional, state, or national convention or workshop, ceremonial event, or press
conference, or the attendance by a quorum of a governmental body at a candidate forum, appearance,
or debate to inform the electorate, if formal action is not taken and any discussion of public business is
incidental to the social function, convention, workshop, ceremonial event, press conference, forum,
appearance, or debate. Under Texas law, not every gathering or conversation is considered to be a
meeting. The provisions of Tex. Gov’t Code §551.002 require multiple elements to constitute a
meeting. First, a quorum must be present for a meeting to occur. In the case of Harlandale ISO which
has seven trustees, a quorum is four trustees.
D. THERE WAS NO QUORUM OF TRUSTEES PARTICIPATING IN 3 OF THE 5 TEXT

COLLOQUIES.
There is no evidence in the attached pages that a quorum of the trustees conducted a meeting. What
is in the attached documents are a series of exchanged text messages among individuals who were not
in the same place. In addition, the requirements of having a meeting are that a deliberation take places
among the quorum. The deliberation must take place involving a verbal exchange •·between a quorum."
The combinati on of these two factors requires that a verbal communication must be exchanged. In other
words, at least four Trustees must be involved in a two-way verbal exchange for a meeting to occur.
"Meeting in numbers less than a quorum does not present a legal problem.” Attorney General Opinion
No. GA-0326 (2005) at page 3.
In looking at the exchanged text message chains of the alleged dates, the following quorum observations
17
are obvious:
• September 21, 2017 - No Quorum. At most, l Trustee text and one Trustee response.
• December 30, 2017 -No Quorum. At most, I Trustee text and two Trustee responses, albeit
one was not directly responsive to the original text.
• May 8. 2018 -No Quorum. At most, I Trustee text and one Trustee response.
A careful review of the actual number of Trustee participants in the text message exchanges clearly
shows that in five of the six text message chains for which evidence was supplied by TEA, there was
no quorum of Trustees who participated in the deliberation. Participation requires an exchange of views
among actual participants in the deliberations. TEA has not furnished information so as to determine
who were the recipients of the text messages other than the responders. Even if TEA assumes that all
trustees were recipients of the original text messages, the passive receipt of a text message, without
evidence that it was, will not support a finding of a quorum violation.
E. DELIBERATIONS MUST BE ABOUT MATTERS WHERE GOVERNMENTAL BODY HAS

CONTROL
The Preliminary SAI Repot contains no discussion whatsoever concerning the requirement that in
order to be a "deliberation" covered by TOMA, matters "over which the governmental body has
supervision or control" must be discussed. There are only two text message chains in which a
quorum of members might be shown as recipients in some form or fashion of a qualifying message.
However, the Preliminary SAI Report did not analyze the conversations in order to determine
whether the matters discussed were within the Board's control or supervision. This failure undermines
the TEA Finding No. 4.
Tex. Educ. Code §11.151 provides in relevant part as follows:

Sec. 11.151. IN GENERAL.
(a) The trustees of an independent school district constitute a body corporate and in the name of
the district may acquire and hold real and personal property, sue and be sued, and receive
bequests and donations or other moneys or funds coming legally into their hands.
(b) The trustees as a body corporate have the exclusive power and duty to govern and oversee the
management of the pu blic schools of the district. All powers and duties not specifically
delegated by statute to the agency or to the State Board of Education are reserved for the
trustees, and the agency may not substitute its judgment for the lawful exercise of those powers
and duties by the trustees.
(c) All rights and titles to the school property of the district, whether real or personal, shall be
vested in the trustees and their successors in office. The trustees may, in any appropriate manner,
dispose of property that is no longer necessary for the operation of the school district.
(d) The trustees may adopt rules and bylaws necessary to carry out the powers and duties provided
by Subsection (b).
Under this legal standard, it is absolutely clear that the Trustees of the District do not manage the
districts affairs or its personnel. Those functions belong exclusively to the superintendent. See Tex.
Educ. Code §11.201. There has been no showing whatsoever by TEA as to how it determined that the
Board of Trustees could have taken effective action concerning the parental complaint. With this
definition of ''deliberation'' and the Board's authority in mind, we will review the two text message
18
chains.
Friday, September 22, 2017

The September 22, 2017 text message conversation began when Trustee Carrillo sent a text
concerning a human trafficking book assigned as reading for freshman high school students. The matter
in question related to the content of a high school text entitled Sold. The text was selected and assigned
by the teacher. It was not adopted by the Board or any textbook committee. The teacher's selection
of the particular text was and is protected by the teacher's academic freedom. The Board of Trustees
has no involvement and can have no involvement with selection individual materials for specific reading
assignments. In fact, this particular issue was successfully resolved between the parents and the English
teacher and an alternative reading assignment was made. The matter in question was resolved without
input from the Board, from the District's Central Office, or by the campus principal. It was resolved
between the parents and the teacher. Trustee Carrillo, in her text, did not propose or advocate any Board
action. David Abundis passed on information that according to reviews, the text was high school
appropriate. Mr. Abundis did not propose or advocate any Board action. Ricardo Moreno asked for
what grade for the assignment was made. Mr. Moreno did not make a statement or declaration, he
merely asked a question. He did not propose or advocate any Board action or position. Mr. Tejeda said
the group should not discuss unless in a meeting. He did not propose or advocate any Board action
or response substantively to the matter of the assigned reading. Mr. Mancha responded to Ms. Carrillo
"good point" and that parents should have been notified "that is the way we recommend it to be done."
There was no proposal for Board action proposed or discussed. No public policy was discussed
because the textbook discussion was a purely private concern between specific parents of a specific
student and a single teacher. The matter would not be appropriate for a public discussion. As a
result, there was no deliberation.
Saturday, August 18, 2018

The August 18, 2018 colloquy began when Mr. Gerardo Soto, the HISD Executive Director of
Operations, sent a group text to report that a City Building Inspector did not show up for a scheduled
inspection and teachers and staff could not report to work over the weekend.
Superintendent Madrigal contacted a City Council Member and City Manager to have the school
inspection raised to a priority. Responses to this text message were sent from Jesus Tejeda and Christina
Carrillo. There was no deliberation, only comments. Trustee Tejeda advised patience with the inspection
regime but proposed no action. He raised an open meetings concern. Trustee Carrillo responded only
to Mr. Tejeda's open meetings concern. No other trustee discussed open meeting violations . Zeke
Mendoza just offered a thumbs up and a picture. But when asked to talk more, he declined. There were
additional texts between Ricardo Moreno and Mr. Tejeda only. Mr. Moreno and Mr. Tejada discussed
whether there would be overtime for teachers and staff and when the inspector would come back. The
overtime issue was discussed only between these two trustees. In all of the conversation, no Board
action was proposed or discussed. No other trustees were participants in this text conversation. Clearly,
the Board of Trustees has no oversite or control over a separate governmental agency (City Building
Inspector). While this text sequence contained cross-talk about multiple issues, none of those issues
involved public policy decisions or proposed actions within the jurisdiction of the HISD Board.
None involved consistent pat1icipation of a consistent quorum of board members. There was, therefore,
no deliberation. The definition of a meeting under the Open Meetings Act necessarily entails the
discussion of matters, by a quorum, over which the Board has the authority to act. As it pe11ains to
the specific text messages in this case, a meeting is "a deliberation between a quorum of a
governmental body, or between a quorum of a governmental body and another person. during which
19
pu blic business or public policy over which the governmental body has supervision or control is
discussed." Id. § 551.001(4)(A). This definition is not met in the context of the text messages at issue.
F. Tex. Govt. Code §551.006

Tex. Gov’t Code §551.006 authorizes the creation of a message Board for communications between
members of governmental bodies "about public business or public policy over which the governmental
body has supervision or control." The creation of the message board is not mandatory, nor is applicable
to communications among less than a quorum (because communications among less than a quorum
cannot constitute a '·meeting,. under Tex .Govt Code § 55I .002(A)). On its face Tex. Govt Code §551.006
creates a permissible exception to when, under some circumstances, serial communications could be
considered a meeting. However, the absence of such a message board does not create or indicate a
violation of the Texas Open Meetings Act. A violation occurs only when a statutorily defined •·meeting"
is held, and that meeting is not open to the public. The TEA Staff s reliance upon TEX. Gov't CODE §
551.006 is misplaced. The focus should be upon whether a meeting has occurred.
G. Tex. Govt Code §551.143(a)
The Provisions of Tex. Govt. Code §551.143(a) were not cited by the TEA staff as a basis for concern but
should be considered. This provision covers the situation involving a so-called "walking discussion" or
"walking quorum."
In Esperanza Peace and Justice Center v. City of San Antonio, 316 F. Supp. 2d 473,476 (U.S. Dist. Ct for
W.D. Tex. 2001 ) a federal district court found that in a civil context "meeting in numbers less than a
quorum for the purpose of secret deliberations··refers to a quorum or more of a body that attempts to
avoid the Open Meeting Act's purposes by deliberately meeting in numbers physically less than a
quorum in closed sessions to discuss public business and then ratifying its actions in a physical
gathering of the quorum in a subsequent sham public meeting. In Esperanza, San Antonio City Council
Members passed around a consensus memorandum on the city's budget. A number of council members
equaling at least a quorum signed individually, and then adopted the budget reflected in the
memorandum at an open meeting without discussing the memorandum' s contents. It was without
question that the Budget adoption was a specific responsibility of the city council, and that by
circulating and signing the budget memo. the City Council was effectively taking action. The court
concl uded that the Council's actions concerning the budget were void because they constituted a
meeting held in violation of the OMA. See Experanza, 316 F. Supp. 2d at 478; see also Tex. Govt. Code
Ann. §551.141 (Vernon 2004) ("An action taken by a governmental body in violation of this chapter
is voidable..). Accord Willman v. City of San Antonio, 123 S.W.3d 469, 478 (Tex. App.-San Antonio
2003. pet. denied); Tex. A tt'y Gen. Op. No. .JC-0307 (2000) at 8; Tex. Att'y Gen. L0-95-055, at 4; Tex.
Att'y Gen. Op. No. DM-95 (1992) at 4; see generally Hitt v. Mabry. 687 S.W.2d 791 ,794 (Tex. App.-
San Antonio 1985, no writ).
In Harper v. Best. 493 S.W.3d 105 (Tex. App.-Waco 2016, pet. granted), the State of Texas alleged
that within two sets of communications, a "walking discussion" between three board members is seen and
a dialogue with a fourth board member is referenced. Citing Section 551.143 of the Texas Government
Code, the State argued that this was an attempt by Harper to circumvent, and thus, violate the Open
Meetings Act. Section 551.143 provides that a member or group of members of a governmental
body commits an offense if the member or group of members knowingly conspire to circumvent the
Open Meetings Act by meeting in numbers less than a quorum for the purpose of secret deliberations
in violation of the Act. Tex. Govt. Code Ann §551.143 (West 2012). The Harper Court held that one
20
governmental official merely texting one or more other officials does not constitute an offense. In order
to establish a "walking quorum", it must still be proved that the governmental body was actually
conducting "deliberations." The mere reference to another member of the governmental body, or
inclusion on a text message without response does not indicate that deliberations were cond ucted.
Acknowledging the text message is also not sufficient, Harper holds that a member of the governmental
body must address the substantive merits of the item under discussion for a deliberation to occur. In
Harper. the councilman mentioned that would not “ get into" the subject of those motions. The Com1held
that under these circumstances, nothing was presented to show that an exchange occurred. Without
evidence of such an exchange. there was no ability to establish by clear and specific evidence that a
violation of Section 551.143 of the Open Meetings Act had occurred. The same reasoning d ictates that
the requisite deliberations did not occur in the text messages at issue in this investigation.
The TEA recognizes the District’s effort to have initiated additional Trustee training in order to ensure
future statutory compliance. A source of extensive guidance regarding open meetings is the 2018 Open
Meetings Handbook, published by the Attorney General of Texas, found here:
https://www.texasattorneygeneral.gov/%20files/og/OMA_handbook_2018.pdf.
The Introduction to the 2018 Texas Open Meeting Handbook, quotes Founding Father, Patrick Henry,
regarding the importance of transparency in government, “The liberties of a people never were, nor ever
will be, secure when the transactions of their rulers may be concealed from them.”
The Texas Open Meetings Act was enacted to ensure that Texas government is transparent, open and
accountable to all Texans. It requires that state and local governmental entities conduct public business
responsibly and in accordance with the law.”
It is for that reason that Texas Association of School Boards (TASB) Legal Services has provided a resource
titled “Trustees and Technology”: https://www.tasb.org/services/legal-services/tasb-school-law-
esource/governance/documents/trustees-and-technology.pdf.
TEA encourages HISD to utilize this TASB resource to assist them in understanding OMA application to
school boards, current case law regarding OMA and school boards, as well as tips on how a school board
must conduct open meetings. Of note, beginning on page three of these guidelines, electronic
communication among board members is addressed. Specifically: guidance:
“Electronic Communications among Board Members
Texas Open Meetings Act
The purpose of the Texas Open Meetings Act (OMA) is to ensure the public’s access to meetings
of governmental bodies so “that the public has the opportunity to be informed concerning the
transactions of public business.” Toyah Indep. Sch. Dist. V. Pecos-Barstow Indep. Sch. Dist., 466
S.W. 2d 377, 380 (Tex. Civ. App, - San Antonio 1971, no writ). The OMA provides that meetings
of governmental bodies, including school boards, must be open to the public except for expressly
authorized executive sessions. Tex. Gov’t Code §§551.001(3)(E), 002. The OMA also provides
that the public must be given notice of the time, place, and subject matter of meetings of
governmental bodies, Tex. Gov’t Code §551.041.”
and
21
“…If there is a deliberation of public business among a quorum of the board, a meeting will occur,
even if it is unintentional. According to the Texas Supreme Court, “When a majority of a public
decision making body is considering a pending issue, there can be no ‘informal’ discussion. There
is either formal consideration of a matter in compliance with the OMA or an illegal meeting.” Acker
v. Tex. Water Comm’n, 790 S. W. 2d 299, 300 (Tex. 1990).”
TASB’s provides further guidance that outside of an official online message board, for a
“…board member to email, text message, instant message, or otherwise contact the rest of the board
to discuss school business outside of public meetings…are generally not excepted from the OMA.”
“An illegal meeting can occur if a quorum deliberates school business outside of a posted meeting,
even if the quorum does not meet at one time or place. Hitt v. Mabry, 687 S.W. 2d 791 (Tex. App.
– San Antonio 1985, no writ); Tex. Att’y Gen. LO-95-055 (1995). See also Harper v. Best, 493
S.W. 3d 105 (Tex. App. – Waco 2016, pet. Granted) (involving series of text messages among
board members). As a result a board member should avoid involving a quorum of the board in an
e-mail or other electronic conversation outside of a public meeting. This can occur when a board
member sends e-mails or text messages to the entire board, copies the rest of the board on
correspondence, or engages in a chain of electronic communications that add up to a quorum
deliberating school business. See Tex. Att’y Gen. Op. No GA-326 (2005) (concluding that a
member of a governmental body could commit a criminal violation of the OMA if he had successive
communications about school business with a quorum of the governing body outside of a posted
meeting.)
Earlier this year, the Court of Criminal Appeals in State v. Doyal struck down a single criminal provision
of the Act that prohibited members from conspiring to circumvent the Act by meeting in numbers of less
than a quorum. The Court concluded that Tex. Gov’t Code, §551.143(a) was unconstitutionally vague on
its face. The Court’s decision was limited to Tex. Gov’t. Code §551.143, and all other provisions of the Act
remain valid and binding. See Tex. Att’y Gen. Op. No. KP-0254. Under the plain language of the statute
and definitions provided by the Legislature, if a quorum of a governmental body deliberates about public
business within the jurisdiction of the body outside of a meeting authorized by the Act, the governmental
body violates the Act. Id.
TASB states further:
“Both a court and the attorney general have defined deliberation to include a one-way
communication spoken by one member of a governmental body and heard by the rest of a
quorum. See, e.g., Bexar Medina Atascosa Water Dist. V. Bexar Medina Atascosa Landowners’
Ass’n. 2 S.W. 3d 459 (Tex. App.-San Antonio 1999, pet. Denied), Tex. Att’y Gen. Op. No. JC-
203 (2000) (both holding that a governmental body failed to comply with e OMA when a quorum
of the body was present at a public meeting of another entity and one member of governmental
body discussed public business in front of the rest of the quorum). In other words, if a quorum of
a school board is together and one member of the quorum talks about school business, a meeting
has occurred, even if none of the other trustees respond. A back-and-forth discussion is not
required for a deliberation under the OMA.”
The text messages provided to the district, and analyzed by the district itself in its February 11, 2019,
response to TEA, contain violations containing various elements of prohibited deliberations under the
Act, such as:
22
• Non-transparency by not allowing the public to be present during a Board Meeting
• Exchanging text messages with board members that constitute a quorum.
• Exchanging text messages with board members by nature of copying them in on the text
message.
• Board members involving in an “informal” discussion
• Text messaging board members with school business outside of public meetings and outside an
official online message board.
• Board Member(s) sending text messages to the entire board, copies the rest of the board,
engages in a chain of electronic communications that add up to a quorum deliberating school
business.
The HISD Board of Trustees actions are in direct opposition the Texas Open Meetings Act, Tex. Gov’t.
Code §551, and transparency in government.
Harlandale ISD. TEA determines that Finding Four stands.
Finding # 5 The HISD Board of Trustees approved six (6) contract amendments and change orders that
resulted in a changed contract over $1 million and total change orders exceeding more than 25 percent over
the original contract amount, in violation of Tex. Educ. Code §§44.0411(d), as well as, Tex. Educ. Code
§11.1511(b)(15).
Finding #6 The District circumvented the bidding process in that the contracts with the
Commissioning Agent did not contain an effective end-date, allowing the commissioning agent to
continue its work through six contract amendments and multiple change orders, thus exceeding the
$50,000 threshold, in violation of Tex. Educ. Code §44.031(a), Tex. Gov’t. Code §2269, local policy, as
well as, Tex. Educ. Code §11.1511(b)(15).
HISD’s Response to Finding #5 and Finding #6:
Matters Relating to Jasmine Engineering, Inc.

A. Facts relevant to TEA Finding No. 5 and 6 – Contracts with Jasmine Engineering, Inc.
Annotated Chronology of Events, Activities, and Agreements
At all times material to the Preliminary SAI Report, Jasmine Engineering, Inc. has been a professional
engineering firm. It has been licensed by the Texas Board of Professional Engineers since December 15,
2000 to offer professional engineering services within in the State of Texas. (Firm # 2461). As with
Terracon Consultants, Inc., the failure by TEA Staff to understand the significance of these facts, or to even
cursorily review the nature of the engagements of these two firms resulted in the mis-citation of applicable
law and the resulting inevitable error in the conclusions reached.
On March 1, 2007, at a Special Called Board Meeting the HISD Board of Trustees voted to issue an RFQ
for commissioning agents for Bond 2006 projects.
On May 3, 2007, at a Special Called Board Meeting Jasmine Engineering, Inc. was the highest ranked of
two submitting vendors was selected by the Board of Trustees to serve as commissioning agent for the 2006
Bond Program.
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On August 13, 2007, the HISD Building Committee, based upon staff recommendations, voted to
recommend to the full Board a 1.5% commissioning fee for Jasmine Engineering for secondary schools
only.
On August 20, 2007, the HISD Board voted to enter into a contract with Jasmine Engineering for
commissioning services for Harlandale Middle School, Kingsborough Middle School, Leal Middle School,
Terrell Wells Middle School, McCollum High School, Harlandale High School and additional projects to
be added upon agreement. The agreed amount was 1.5% of $35,798,648 for a fee of $535,639.72 with
reimbursable amounts not to exceed $10,000., Board Minutes of 8/20/07.
On August 22, 2007, an Agreement for Commissioning Services between HISD and Jasmine Engineering,
Inc, incorporating the terms approved by the HISD Board August 20, 2007 was executed by HISD
Superintendent Guillermo Zavala, Jr.
On November 5, 2007, HISD Building Committee voted to recommend that Jasmine Engineering’s scope
of services be amended to include total commissioning of the secondary schools and the elementary school
roofs, secondary gyms, HVAC’s, Tejeda classroom addition, and Pre-Kindergarten classrooms at a cost of
4% of $45,487,000 projected cost.
On November 28, 2007, at a Special Called Board Meeting the Board approved the Board Building
Committee’s recommendation to approve 4% for the full scope of commissioning of $45,755,487.
On November 28, 2007, an Amended Agreement for Commissioning Services between HISD and Jasmine
Engineering, Inc, incorporating the terms approved by the HISD Board on November 28, 2007 was
executed by HISD Superintendent Guillermo Zavala, Jr.
On April 22, 2008, the terms and conditions of the Jasmine agreement, as amended, was reviewed by HISD
former legal counsel at a Building Committee Meeting.
On September 21, 2009, the HISD approved additional services from Jasmine Engineering for the design
and the incorporation of the science labs at McCollum High School and Harlandale High School from
awarded grant funds. The Amendment was recommended by HISD staff.
On December 10, 2009, the Board Building Committee met and discussed whether Jasmine Engineering
should be considered to oversee the Bond 2009 program. No action was taken.
On December 21, 2009, during a Special Called Board Meeting the Board approved an Amendment Jasmine
Engineering’s services for the Bond 2009 program (Renovations of Field Houses, Renovations of Band
Halls, Fencing, Security Cameras, Parking Lots, Bleachers, Athletic Field Upgrade and Concession Stand)
and amended the contract to set the fee at 6%.
On January 29, 2010, a Second Amended Agreement for Commissioning Services between HISD and
Jasmine Engineering, Inc, incorporating the terms recommended to the HISD Board. On February 3, 201
the Second Amendment was executed by HISD Board President Jesse Jay Alaniz.
On February 1, 2010, the Board Building Committee discussed Jasmine Engineering’s scope of work.
Superintendent Robert Jaklich informed the committee that Jasmine Engineering was only overseeing
projects assigned to her in the agreement.
On April 15, 2010, Superintendent Jaklich drafted and sent a memo concerning the Board vote to approve
budget amendments of District Bond funds including the use of interest earnings of the Bond 2006 program,
24
and the combining of other bond resources for a total of $4,093,000 to add to the Bond 2009 program
projects, together with an additional fee of 6% of the newly allocated funds for payment of the Total
Building Commissioning Authority.
On April 18, 2011, Superintendent Jaklich drafted and sent to the HISD Board a memo concerning the
reporting of payments to Jasmine Engineering for both the 2006 and 2009 Bond programs.
On November 6, 2012, Superintendent Madrigal discussed new projects and fees for Jasmine Engineering
with the Building Committee.
On November 12, 2012, at a regular meeting the HISD Board, based upon the recommendation of
Superintendent Madrigal, voted to approve an agreement with Jasmine Engineering for Commissioning and
Consulting multiple projects for possible renovation and re- purposing.
On December 6, 2012, Superintendent Madrigal executed a Professional Services Agreement for
Consulting Services for the items discussed and approved on November 12, 2012.
On January 28, 2013, at a Special Board Meeting the HISD Board approved specific payment amounts to
Jasmine Engineering for project services or additional scope of work added to the Bond 2006 and Bond
2009 programs.
On September 16, 2013, at a Regular Board Meeting the Board approved a contract with Jasmine
Engineering for Project Oversight and Total Building Commissioning on Fall 2013 Projects (Gillette
Elementary, Leal Middle School Field Drainage, Security Installment Project, Career Tech Project, Auto
Tech Project, and Early College High School Project). The motion included amending Jasmine
Engineering’s consulting agreement to include the University Health System School Based Clinic scope of
work
On September 19, 2013, Superintendent Madrigal executed a First Amendment and Second Amendment to
Professional Services Agreement for Consulting Services for the items discussed and approved on
September 16, 2013
On December 3, 2013 at a Special Called Board Meeting the Board approved payment to Jasmine
Engineering for priority projects.
On December 6, 2013, Superintendent Madrigal executed a Third Amendment to Professional Services
Agreement for Consulting Services calling for the inclusion of the items discussed and approved on
December 3, 2013.
On March 17, 2014, the Board voted to approve the change to the construction method for the UHS campus
health clinic from Construction Manager at Risk to Competitive Sealed Proposals; and as a result, to Amend
the Jasmine Consulting Agreement to include the project.
On May 19, 2014, the Board approved an assessment targeting the needs of Carroll Bell Elementary and
Vestal Elementary. The Superintendent was instructed to negotiate a contract with Jasmine Engineering
and report the final cost for the assessment to the Board.
On June 16, 2014, the Board voted on a motion for the Superintendent to execute an amendment to approve
a proposal from Jasmine Engineering, after receiving advice from District former legal counsel.
25
On December June 26, 2014, Superintendent Madrigal executed a Fifth Amendment to Professional
Services Agreement for Consulting Services for the items discussed and approved on June 16, 2014.
On October 29, 2015 Special Called Board Meeting District staff gave a presentation regarding
Programming, Project Management, and Commissioning. Staffs’ presentation included a comparison of
current District construction practices to that of other districts. Board voted to continue contract Jasmine
Engineering as Project Manager and Commissioning Agent to oversee construction for a fee of 5% with no
reimbursable
On November 17, 2015, Superintendent Madrigal executed a Sixth Amendment to Professional Services
Agreement for Consulting Services for the items discussed and approved on October 29, 2013.
B. Legal Analysis Findings 5 and 6
Harlandale ISD entered into ten separate Agreements or Amendments with Jasmine Engineering, Inc.
related to multiple projects beginning in 2007 through 2015. From the chronology set forth in the foregoing
Section, it is clear that the Harlandale ISD Board of Trustees deliberated and approved each contract or
amendment involving Jasmine Engineering. Jasmine Engineering, Inc. was originally hired by the HISD
Board on March 1, 2007 at a Special Called Board Meeting when the Board voted to issue an RFQ for
commissioning agent for Bond 2006 projects. After a review of the proposals, on May 3, 2007 at a Special
Called Board Meeting, Jasmine Engineering, as the highest ranked of two submitting vendors, was selected
by the Board to serve as Commissioning Agent for the District, initially for Bond 2006 projects.
While it is true that the original contract did not have a specific termination date, it was not open-ended in
terms of the set tasks to be executed under the specific terms in the Agreement.
The original contract was for Jasmine Engineering to act as the District’s Commissioning Agent for a
discrete list of 5 specific projects identified along with specific budgets for each project. The original
agreement did provide that additional work could be added at a later time upon a subsequent agreement
with HISD. It is important to note that project commissioning activities expressly defined in Article I of
Exhibit Finding 5-E, beginning at page 1, involve tasks that begin From a review of the text of the attached
Jasmine Engineering, Inc. contracts, each was for the completion of specifically delineated tasks. prior to
the initiation of the architectural design of the project and continued through the District’s occupation of
the constructed facilities. This significant fact was completely ignored by TEA investigators.
It is axiomatic that a construction project’s duration cannot be anticipated prior to the time when the project
is even designed. Instead, the District sought to and accomplished the issue of control of Jasmine’s activities
by designating specific projects to be undertaken, setting a specific project budget, and limiting the
consultant’s remuneration to a fixed percentage of the budgeted project budget amounts. Any intimation
that specific time parameters were required or even particularly desirable at the initial phases of project
development evidences a complete lack of understanding of the project development process by TEA.
Additionally, TEA Staff did not point to any legal requirement for the inclusion of a set project termination
date in this type of contract. No such legal constraints exist. By insisting, as it did at page 12 of the
Preliminary SAI Report without citation to any controlling legal authority, that the Jasmine contracts
required “an effective end date”, TEA Staff is guilty of conjuring up non-existent legal requirements in
order to find a violation of law where none exists.
Similarly, all of the subsequent agreements or amendments were for the accomplishment of specific tasks.
As with the original Agreement, subsequent agreements were for the development of specifically identified
26
projects. As set forth in the preceding paragraph, the establishment of a specific timeline is often not
practical and it is certainly not legally mandated. When assessing the legal conduct of school districts,
neither the Commissioner nor the TEA Staff may substitute their judgment for that of the Board.
i. Procurement Activities for Engineering/Professional Services are Governed by Tex. Govt. Code,
Chapter 2254, not by Tex. Govt Code, Chapter 44, Subchapter B
At pages 1, 3, 4 (including specifically Finding 5), and at 6, 12, 13, 14, and 15 of the Preliminary SAI
Report TEA Staff alleges that Harlandale ISD acted in violation of the Chapter 44 of the Texas Education
Code with respect to procurement activities involving Jasmine Engineering, and Terracon Consultants.
There are also references to Texas Education Code §44.0411 which TEA contends limits the prerogative
of the HISD Board with respect to its contracting activities with Jasmine Engineering by limiting change
orders in relation to certain contracts. TEA’s legal analysis is incorrect.
Chapter 2254 of the Texas Government Code prohibits a political subdivision, including a school district18
from selecting a professional engineer19 on the basis of competitive bids. See, Texas Attorney General
Opinion No JC-0374 (2001). [attached as General Exhibit 5]. According to the Professional Services
Procurement Act,20 “professional services” are defined as services “provided in connection with the
professional employment or practice of a person who is licensed or registered as . . .”21 inter alia, a
professional engineer. Tex. Govt. Code §2254.003 provides that awards for professional services be made
on the basis of demonstrated competence and qualifications and for a fair and reasonable price. To procure
professional services, a governmental entity must first select the most highly qualified provider on the basis
of demonstrated competence and qualifications, and then attempt to negotiate a contract at a fair and
reasonable price. Id. at §2254.004. After a vendor is selected, price negotiations begin. If a satisfactory
contract cannot be negotiated with that provider, the next most highly qualified provider is selected and so
on with the same process until an agreement is reached.
A contract entered into or an arrangement made in violation of Chapter 2254 is void as against public policy.
Tex. Govt. Code §2254.005. The Texas Engineering Practices Act (Act) provides that a political
subdivision may not construct a public work involving engineering in which the public health, welfare, or
safety is involved, unless: (1) the engineering plans, specifications, and estimates have been prepared
by an engineer; and (2) the engineering construction is to be performed under the direct supervision of
an engineer. See, Tex. Occ. Code §1001.407. Under the express limitations of Tex. Admin. Code §137.79:
§137.79 Standards for Compliance with Professional Services Procurement Act
When procuring professional engineering services, a governmental entity and/or its representative(s) shall
comply with the requirements of Subchapter A, Chapter 2254, Tex. Govt. Code and shall select and award
on the basis of demonstrated competence and qualifications to perform the services for a fair and reasonable
price and shall not select services or award contracts on the basis of competitive bidding.
ii. Tex. Educ. Code §44.0411 was not in effect when the selection process for Jasmine Engineering, Inc.
was conducted.
At Findings No. 5, TEA Staff cites to Tex. Educ. Code §44.0411 as the legal basis for the finding of a
statutory violation by HISD. As can be seen from the attached Board minutes, Jasmine Engineering was
originally approved for hiring on August 20, 2007. The selection was made after the issuance of a Board-
ordered RFQ process. and after receiving the recommendation of the Building Committee. The resulting
Commissioning Agreement was executed on August 22, 2007. The Agreement was drafted, reviewed, and
27
approved by HISD’s established school law firm of Escamilla & Poneck, P.C. The law firm did not have
any qualms concerning its execution. Following the original contract, multiple contract amendments and
extension were approved by the Board of Trustees and subsequently executed.
The amendments were reviewed by the school law firm of Walsh & Gallegos which again did not have any
reservations concerning their execution. These facts, albeit not in detail and with no mention of legal
approval by reputable outside law firms, are referenced at pages 12 and 13 of the Preliminary SAI Report.
The Preliminary SAI Report fails to recognize that the provisions of Tex. Educ. Code §44.0411 are not
applicable to contracts advertised prior to September 1, 2011. From the foregoing narrative and from the
face of the documents it is clear that the initial contract which was awarded to Jasmine Engineering, Inc.
was first advertised and awarded in 2007. Because of this fact, the provisions of Tex. Educ. Code §44.0411
simply do not apply. It is unclear how TEA Staff missed this important caveat. The relevant transitional
provisions are printed in the text of the Texas School Law Bulletin, 2018 Edition, at page 630.
The provisions of Tex. Educ. Code §44.0411 were adopted by the 82nd Texas Legislature in 2011 by virtue
of the Passage of H.B. 628 and were contained in Section 2.04 of the Bill.22, In general, Section 6.02
provided that the Act would take effect on September 1, 2011. However, the Bill also contained special
transitional provisions as follows:
SECTION 6.01. (a) The changes in law made by this Act apply only to a contract or construction project
for which a governmental entity first advertises or otherwise requests bids, proposals, offers, or
qualification, or makes a similar solicitation on or after the effective date of this Act. (b) A contract or
construction project for which a governmental entity first advertises or otherwise requests bids, proposals,
offers, or qualifications, or makes a similar solicitation, before the effective date of this Act is governed by
the law as it existed immediately before the effective date of this Act, and that law is continued in effect
for that purpose.
Under the undisputed facts in this case, the provisions of Tex. Educ. Code §44.0411 simply do not apply.
All Findings related to this Section 44.0411 of the Education Code must be dismissed.
TEA’S Informal Review of Finding #5 and Finding #6:
A. TEA Points on Contract History
1) On April 12, 2007, Harlandale ISD (HISD) solicited a Request for Qualifications for
Commissioning Services related to Bond 2006. Respondent Qualifications included a strict
limitation regarding “Location of respondent firm” requiring a local office in San Antonio,
Texas, for a minimum of 12 years. This restriction severely limited other potentially qualified
vendors from submitting a response to the RFQ. This severe limitation is highly questionable
and contrary to equal opportunity for other commissioning agents who may have been able to
establish a local office, or despite location, have more than the 12 years requisite experience
commissioning in the San Antonio area. As a result, in May 2007 HISD received only two
responses to the RFQ.
2) During a special board meeting On May 3, 2017, presentations by the potential commissioning
agents were made and according to the minutes, prior to selecting the most qualified vendor,
Mr. Perez represented to the Board of Trustees the cost of services JE would charge if selected
as the most qualified, specifically a 1%-$4% CA fee. This disclosure shows that
cost/percentage discussions/negotiations for commissioning fees had been undertaken by Mr.
Perez on behalf of HISD with JE prior to selection of JE as the most qualified, which is a
28
violation of Tex. Gov’t Code §2254.003 and HISD – Procurement Policy and Procedures
Manual - PP205/Procuring Architectural/Engineering Services, which requiring solicitation of
vendors through the RFQ process.
3) August 20, 2007, the HISD Board voted on the terms on which to enter into a contract with JE.
The terms voted on and approved by the Board was a commissioning agent (CA) fee to JE of
$535,635.72, representing 1.5% of the cost of the work as detailed in the April 12, 2007 RFQ,
and the option to add additional projects as mutually agreed. On August 22, 2007, HISD and
JE entered into a contract for commissioning services from the Bond 2006 with a fixed 1.5%
CA fee for the construction projects included in the contract. This contract specifically states
the JE’s work is LIMITED to the April 12, 2007 RFQ commissioning and contains the option
to add additional projects if bond interest is available with an additional mutual agreement
required between the parties, with no increase in CA fee.
4) On November 5, 2007, the HISD Building Committee received JE’s Commissioning Agent
report as presented by Mr. Perez and subsequent to the presentation, the Building Committee
discussed with Mr. Perez and discussed the cost of expanding the scope of services of JE, to
“total commissioning” of all of the Bond 2006. A discussion of cost for these services is
memorialized in the HISD Building Committee Board Minutes, which specifies the cost
charged to HISD by JE would be a 4% total commissioning fee. Prior to discussing this fee,
the Building Committee neither discussed whether JE was the most qualified for the expanded
scope of total building commissioning, nor the fact that an option to expand JE’s scope of
services to total commissioning was not part of the April 12, 2007 RFQ for Bond 2006, nor in
the contract. Despite this fact, the Building Committee discussed increasing the scope of
services in conjunction with an additional scope of work and the cost. HISD failed to consider
if other engineering vendors were qualified and neither solicited, through an RFQ process, nor
considered in the Board Discussion, whether any other engineering firms were qualified for the
expansive total building commissioning.
5) On December 10, 2009, the Building Committee discusses hiring Jasmine Engineering in
regard to the 2009 Bond. There is no discussion regarding solicitation of RFQs to review
qualifications of potential vendors
6) On December 21, 2009, the Board unanimously votes to award Jasmine Engineering an
amended contract to include Total Commission Agent on the Bond 2009. There is no discussion
regarding solicitation of RFQ’s to review qualifications of potential vendors. Rather, the
discussion is focused on cost alone and awards a 6% CA to Jasmine Engineering.
7) On February 1, 2010 the Building Committee Report notes there is confusion and lack of
understanding regarding the pending contract and scope of services with Jasmine Engineering
on Bond 2009.
8) The Second Amendment for Commissioning Services is titled on January 29, 2010; however, it
was signed on February 3, 2010 and awards Jasmine Engineering total commissioning on the
all 2009 Bond projects.
9) On November 12, 2012 the Building Committee Report reflects negotiations with Jasmine
Engineering are ongoing regarding a contract.
10) On November 12, 2012 the Board Minutes reflect discontent between Board Members
concerning the 6% CA fee to Jasmine Engineering. There is no discussion regarding solicitation
of RFQ’s to review qualifications of potential vendors. Rather, the discussion is focused on
cost alone and awards a 6% CA to Jasmine Engineering.
29
11) On December 6, 2012 the Board enters a new contract with Jasmine Engineering for Special
Projects.
B. Two Contracts, Multiple Amendments

HISD fails to differentiate between: 1) the initial 2007 contract for commissioning services for projects
related to Bond 2006, and had two subsequent amendments that expanded services to total commissioning
as well as tacking on funding with the 2009 bond, and; 2) the second contract entered into in 2012, with
multiple amendments for projects with various sources of funding, that concluded with an amendment
relating to the 2015 Bond.
1) Contract One and Amendments
a. Agreement for Construction Services - August 22, 2007 (Mechanical Commissioning 1.5%
CA)
b. Amendment to Commissioning Agents Agreement – November 28, 2007 (Awards Total
Commissioning of 2006 Bond, 4% CA)
c. Second Amendment for Commissioning Services – February 3, 2010 (Awarded a 6%
Commissioning fee on the 2009 Bond projects value of $11,760,638.00)
2) Contract Two and Amendments
a. Professional Services Agreement for Consulting Services (Special Projects) - December 6,
2012 (Priority Projects) –contract value: $102,120.00/ paid: $288,043
b. First Amendment to Professional Services Agreement for Consulting Services – September 19,
2013 – contract value: $8,700/ paid: $28,160
c. Second Amendment to Professional Services Agreement for Consulting Services – September
19, 2013 various projects paid: $1,457,394.00
d. Third Amendment to Professional Services Agreement for Consulting Services –December 6,
2013 – additional payment of $95,237 related to 2012 contract (already included above)
e. Fourth Amendment to Professional Services Agreement for Consulting Services –March 26,
2014. Additional payment of $23,160 related to 1st amendment (already included above)
f. Fifth Amendment to Professional Services Agreement for Consulting Services –June 26, 2014.
– contract value: $78,000/paid: $78,000
Total Amount Paid on Contract Two and Amendments One Through Five (Prior to Sixth Amendment which
awarded Jasmine Engineering the 2015 Bond): $1,745,437.00
g. Sixth Amendment to Professional Services Agreement for Consulting Services –November 17,
2015 (Awarded a 5% Commissioning fee on the 2015 Bond Projects value of $64,900,000.
Additional awarded a construction, non-commissioning fee, with a 4% fee for construction and
renovation of parking lots).
C. Internal Audit of Commissioning Expenses and Payments

On July 6, 2015, the report on the Internal Audit of Commissioning Agent – Expenses and Payments, was
provided to the HISD Board. This audit determined the HISD paid Jasmine Engineering a total of $4,987,816
in fees over the course of 8 years, between two contracts and their related amendments.
1. Payments made on 2007 Contract One and Amendments:
a) Total Amount Paid on 2006 Bond (completed): $2,058,728
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b) Total Amount Paid on 2009 Bond (completed): $1,183.651
2. Payments made on 2012 Contract Two and Amendments
a) Total Amount Paid on Priority Projects (completed): $288,043
b) Fall Projects (ongoing) – Paid to date: $1,457,394
Despite the fact the RFQ for Bond 2006 was limited in scope of services and source of funds, HISD continued
to amend the commissioning contract and entered into multiple ongoing contracts and amendments for
scopes of services that were funded out of two additional bonds that were not included in the 2006 Bond
RFQ process.
D) Tex. Educ. Code §44.0411
The District’s response indicates that it does not understand the application of Tex. Educ. Code §44.0411(d)
as being relevant as a finding. The SAI Preliminary Report cited this provision as clearly relevant, not in a
context of addressing the procurement of professional services itself, but rather the issuance of change orders
stemming from an engineering company authorizing those change orders, which places a limit of spending
the district’s bond monies and tax payers’ hard earned money without any regard for internal controls and
justification and regard for the monetary limits given by Tex. Educ. Code §44.0411(d).
Prior to executing the Sixth Amendment of the 2012 contract, the contract had been previously amended in
excess of the dollar amount allowed under Tex. Educ. Code 44.0411(d) which states, “If a change order to a
contract with an original contract price of less than $1 million increases the contract amount to $1 million or
more, the total of the subsequent change orders may not increase the revised contract amount by more than
25 percent of the original contract price.” Despite HISD assertion that this provision does not apply to the
contract with Jasmine Engineering, it in fact does. The original contract was entered on December 6, 2012,
over a year after adoption of the statute on September 1, 2011. Additionally, this provision applies to ALL
contracts for purchasing of services, including professional services. It is important to note that Tex. Educ.
Code §44.031(f) only exempts professional service contracts from the requirements of Tex. Govt Code,
Section 44.031. There is no overall exemption of professional service contracts from the Tex. Educ. Code,
Chapter 44, including the remaining portions of Subchapter B. As there is no exception for professional
service contracts under Tex. Educ. Code §44.0411, as such, the statutory change order limitations apply to
the 2012 contract, and amendments, between HISD and Jasmine Engineering.
HISD’s additional argument that the contract and amendments with Jasmine Engineering do not have to be
in conformance with Tex. Educ. Code §44.0411 based on the fact an RFQ on Bond 2006 predates the
effective date of Tex. Educ. Code §44.0411 in 2011 is misplaced. HISD has failed to take into account that
all Bond 2006 Projects are now completed and were not part of the 2012 Contract, and as such, the RFQ for
2006 Bond could not serve to grandfather HISD’s continued noncompliance with the law in 2015 when, at
the latest, the ability to continue to amend the 2012 contract ceased. HISD proffering that the HISD Board
properly relied on an eight-year-old RFQ related to an expended 2006 Bond with a completed contract work
in 2015, clearly shows lack of internal financial controls by the HISD Board, who collectively eliminated all
competition from other potential Commissioning Agents for HISD’s contract. The failure of the Board to
address the qualifications of Jasmine Engineering and transparency in the award of the Commissioning
contract throughout multiple amendments is inexcusable. There is no evidence that prior to or upon execution
of each amendment that the HISD Board determined that Jasmine Engineering was the most qualified
professional service provider. When the Board did not assure this fact, HISD could not assure it had selected
the most qualified provider nor negotiate a reasonable cost for the district as required, thus bootstrapping
itself to Jasmine Engineering. The increased scope of services and related amendments occurred over
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approximately eight years without qualification reviews or marketplace negotiations on cost, resulting in
contracts with Jasmine Engineering being awarded without equal opportunity to other potential
commissioning companies to compete for the contract. HISD actions failed to provide fair and open
competition in the procurement process. This conduct defies state and local procurement laws which are in
place to assure equal opportunity to vendors across the state of Texas. HISD’s attempt to justify the continual
amendments to the 2012 contract outside the statutorily allowed dollar limits, based solely on the RFQ for
Bond 2006, is ludicrous.
Harlandale ISD. TEA determines that Finding Five and Six stand.
Finding #7 The Superintendent’s hiring of family members was not substantiated or undetermined as
a violation of Tex. Educ. Code §11.1513 and Harlandale ISD Board Policy DBE (Legal) 015904.
HISD’s Response to Finding #7:

TEA Finding No. 7 – Nepotism
With respect to the issue of nepotism and the Superintendent, we remain confused. At Finding No. 7 (page
4) it appears that the charge was found to be unsubstantiated, ergo it was 22 See, General Exhibit 12 HB
628, Engrossed Version, apparently dismissed. Nevertheless, at page 13 of the report, TEA Staff takes what
can only be described as a gratuitous criticism of the Superintendent concerning the “appearance of
favoritism.” We have thoroughly reviewed the provisions of Chapter 573 of the Texas Government Code
concerning nepotism. In our review, we failed to identify a definition of or a legal standard concerning an
“appearance of favoritism”. Under Texas law hiring decisions relating to relatives within the statutory
proscriptions are prohibited. Those proscriptions are clear and were not found by TEA investigators to have
been violated. The reference to the eligibility of cousins as a possible target of a potential nepotism violation
is simply erroneous. Under the methodology described in Tex. Govt. Code §§573.021, 573.022, and
573.023, first cousins are in fourth degree of consanguinity. They are never barred from employment by
the provisions of Tex. Govt. Code §§ 573.002, 573.041, or 573.042. All references to “appearance of
favoritism” should be stricken forthwith. There is no know legal standard which would support its retention.
TEA’S Informal Review of Finding #7:
As TEA did not make a finding in this instance, no additional review of the investigators word choice in
the report is warranted. As such, this portion of the report stands as written.
Applicable Law
Tex. Educ. Code §11.051 (a) An independent school district is governed by a board of trustees who, as a
body corporate, shall: (1) oversee the management of the district; and (2) ensure that the superintendent
implements and monitors plans, procedures, programs, and systems to achieve appropriate, clearly defined,
and desired results in the major areas of district operations. (a-1) Unless authorized by the board, a member
of the board may not, individually, act on behalf of the board. The board of trustees may act only by
majority vote of the members present at a meeting held in compliance with Chapter 551, Government Code,
at which a quorum of the board is present and voting. The board shall provide the superintendent an
opportunity to present at a meeting an oral or written recommendation to the board on any item that is voted
on by the board at the meeting.
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Tex. Educ. Code §11.1511(b)(9) The board shall monitor district finances to ensure that the superintendent
is properly maintaining the district’s financial procedures and records.
Tex. Educ. Code §11.1511(b)(15) The board shall carry out other powers and duties as provided by this
code or other law.
Tex. Educ. Code §11.1511(c)(4) The board may enter into contracts as authorized under this code or other
law and delegate contractual authority to the superintendent as appropriate.
Tex. Educ. Code §11.1152 (a) In relation to the superintendent of the school district, the board of trustees
of the district has the powers and duties specified by Sections 11.1511(b) and (c). The superintendent shall,
on a day-to-day basis, ensure the implementation of the policies created by the board. (b) The board of
trustees and the superintendent shall work together to: (3) provide educational leadership for the district,
including leadership in developing the district vision statement and long-range educational plan; (5) support
the professional development of principals, teachers, and other staff.
District board policy CH (Local) X, revised 09/2015, the board delegates to the Superintendent or designee
the authority to make budgeted purchases for goods or services. However; any single, budgeted purchase
of goods or services that costs $25,000 or more, regardless of whether the goods or services are
competitively purchased, shall require Board approval before a transaction may take place.
District board CH (Local) X, prior to 09/2015 revision, the board delegates to the Superintendent or
designee the authority to make budgeted purchases for goods or services. However; any single, budgeted
purchase of goods or services that costs $15,000 or more, regardless of whether the goods or services are
competitively purchased, shall require Board approval before a transaction may take place.
Tex. Gov’t. Code §551.002 Every regular, special, or called meeting of a governmental body shall be open
to the public, except as provided by this chapter.
Tex. Gov’t. Code §551.006 (a) A communication or exchange of information between members of a
governmental body about public business or public policy over which the governmental body has
supervision or control does not constitute a meeting or deliberation for purposes of this chapter if: (1) the
communication is in writing; (2) the writing is posted to an online message board or similar Internet
application that is viewable and searchable by the public; and (3) the communication is displayed in real
time and displayed on the online message board or similar Internet application for no less than 30 days after
the communication is first posted.
Tex. Educ. Code §44.031(a) “Except as provided by this subchapter, all school district contracts for the
purchase of goods and services, except contracts for the purchase of produce or vehicle fuel, valued at
$50,000 or more in the aggregate for each 12-month period shall be made by the method, of the following
methods, that provides the best value for the district: (5) a method provided by Chapter 2269, Government
Code, for construction services.
Tex. Educ. Code §44.0411(d). Change Orders state a contract with an original contract price of $1 million
in addition or more may not be increased under this section by more than 25 percent. If a change order for
a contract with an original contract price of less than $1 million increases the contract amount to $1 million
or more, the total of the subsequent change orders may not increase the revised contract amount by more
than 25 percent.
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Tex. Educ. Code §11.1513(a)(2) The superintendent has sole authority to make recommendations to the
board regarding the selection of all personnel other than the superintendent, except that the board may
delegate final authority for those decisions to the superintendent.
District board policy DC (Local), Employment of Contractual Personnel, and DC (Legal): The
Superintendent has sole authority to make recommendations to the Board regarding the selection of
contractual personnel. The Board retains final authority of reemployment of contractual personnel.
Amendments to Applicable Law
Tex. Govt. Code §2254.003. Selection of Provider; Fees (a) A governmental entity may not select a
provider of professional services or a group or association of providers or award a contract for the services
on the basis of competitive bids submitted for the contract or for the services, but shall make the selection
and award: 1) on the basis of demonstrated competence and qualifications to perform the services; and 2)
for a fair and reasonable price. (b) The professional fees under the contract may not exceed any maximum
provided by law.
Tex. Govt. Code §2254.004 Contract for Professional Services of Architect, Engineer (a) In procuring
architectural, engineering, or land surveying services, a governmental entity shall: (1) first select the most
highly qualified provider of those services on the basis of demonstrated competence and qualifications; and
(2) then attempt to negotiate with that provider a contract at a fair and reasonable price. (b) If a satisfactory
contract cannot be negotiated with the most highly qualified provider of architectural, engineering, or land
surveying services, the entity shall: (1) formally end negotiations with that provider; (2) select the next
most highly qualified provider; and (3) attempt to negotiate a contract with that provider at a fair and
reasonable price. (c) The entity shall continue the process described in Subsection (b) to select and negotiate
with providers until a contract is entered into.
Tex. Govt. Code §2269.057 Architect or Engineer Services (a) An architect or engineer required to be
selected or designated under this chapter has full responsibility for complying with Chapter 1051 or 1001,
Occupations Code, as applicable. (b) If the selected or designated architect or engineer is not a full-time
employee of the governmental entity, the governmental entity shall select the architect or engineer on the
basis of demonstrated competence and qualifications as provided by Section 2254.004.
Tex. Govt. Code §2269.058 Use of Other Professional Services (a) Independently of the contractor,
construction manager-at-risk, or design-build firm, the governmental entity shall provide or contract for
the construction materials engineering, testing, and inspection services and the verification testing
services necessary for acceptance of the facility by the governmental entity. (b) The governmental entity
shall select the services for which it contracts under this section in accordance with Section 2254.004.
Tex. Govt Code §2269.201-.208 Construction Manager-Agent Method
Tex. Govt. Code §2269.201 Contracts for Facilities: Construction Manager-Agent. (a) In this chapter, the
"construction manager-agent method" is a delivery method by which a governmental entity contracts with
a construction manager-agent to provide consultation or administrative services during the design and
construction phase and to manage multiple contracts with various construction prime contractors. (b) A
construction manager-agent is a sole proprietorship, partnership, corporation, or other legal entity that
serves as the agent for the governmental entity by providing construction administration and management
services described by Subsection (a) for the construction, rehabilitation, alteration, or repair of a facility.
(c) A governmental entity may retain a construction manager-agent for assistance in the construction,
rehabilitation, alteration, or repair of a facility only as provided by this subchapter.
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Tex. Govt. Code §2269.203. Limits on Construction Manager-Agent. A construction manager-agent may
not: (1) self-perform any aspect of the construction, rehabilitation, alteration, or repair of the facility; (2)
be a party to a construction subcontract for the construction, rehabilitation, alteration, or repair of the
facility; or (3) provide or be required to provide performance and payment bonds for the construction,
rehabilitation, alteration, or repair of the facility.
Tex. Govt. Code §2269.204. Fiduciary Capacity of Construction Manager-Agent. A construction manager-
agent represents the governmental entity in a fiduciary capacity.
Tex. Govt. Code §2269.207. Selection of Construction Manager-Agent. A governmental entity shall select
a construction manager-agent on the basis of demonstrated competence and qualifications in the same
manner that an architect or engineer is selected under Section 2254.004.
Harlandale ISD Procurement Policy and Procedures Manual - PP205/Procuring Architectural / Engineering
Services. Purpose: To establish procedures for the procurement of architectural or engineering services.
Scope: This procedure applies to all solicitation of architectural or engineering services. Procedures: 1.
Solicit vendors to respond in a non-financial format their proposal including their demonstrated competence
and qualifications. 2. Rank the best qualified firms according to their demonstrated competence. 3. Attempt
to financially negotiate a contract with the highest-ranking firm. 4. If a satisfactory contract cannot be
achieved with the most highly qualified provider of architectural or engineering services, the District will
formally end negotiations with that firm, select the next best qualified company and attempt to negotiate a
fair and reasonable price. The District shall continue this process with other firms until a contract is entered
into.
Amended Facts
TEA has amended the facts to properly reflect the use of the term “request for qualifications” in lieu of
“request for bids.”
On October 19 - 22, 2015, the District’s Auditor contacted the district’s procurement department inquiring
about the $60,000 payment made in fiscal year 2014-2015 to a consulting firm without board approval.
On October 22, 2015, the district responded that the district has been using their services since 2009, as
needed at unplanned dates, due to the nature of unpredictable construction activity. It further responded:
“To present them to the Board prior to construction activity would lead to questions if we do not use their
services (or any other engineering firm) for construction testing. To present them to our Board after their
services have been rendered would also lead to questions as this type of ratification has never been used for
this type of construction testing service”.
HISD’s Report on Conduct of Audit for the Year Ended June 30, 2015, Section IX, Internal Control and
Other Matters, page 5, noted that during the year the “District made eight payments totaling $60,925 to an
engineering firm. The district entered into four (4) related agreements for construction materials testing
services. The four agreements total $141,500 and were signed by the Superintendent; however, no effective
dates were specified in the agreements. It appears that Board approval was not obtained for these
agreements.”
The Superintendent responded to the allegation stating: “Although the total of the purchase orders were
$141,500.00 and above the $25,000.00 threshold, the purchase orders would not have to have been
35
presented to the Board for approval since the consulting firm was one of the approved engineers to provide
this service and the District had a satisfactory experience with them and chose to use them based on their
qualifications, experience and service to the District. The total payments the fiscal year of 2014-2015 was
$60,925.00”
HISD Board of Trustees is currently comprised of seven board members.
SIU investigators interviewed HISD Board of Trustees A-G, as well as former and current district
employees. SIU reviewed electronic communications between Trustees and official reports.
SIU’s interviews and review of documentation revealed the following:

• Significant dysfunction exists among Board of Trustees in the form of distrust, in-fighting and
bullying, biased bid ranking, and alliances among the Trustees;
• An improper dependency relationship between certain Board Members and an outside contractor
for possible exchange of monies, gifts, meals, and other in-kind donations;
• Trustees A, B, D, E, F and G acted outside the scope of their authority by frequenting the district’s
campuses, by directly contacting and questioning district employees about personal and district
matters, by intimidating them, disrupting the day-to-day operations of the Superintendent and
District employees, and thereby impeding the district’s ability to govern and make decisions to
carry out the business of HISD.
Examples SIU identified as overreach by HISD Trustees, included:

• Trustee A acted outside the scope of his authority when he accepted a dinner invitation from the
former outside contractor discussing the possibility of terminating the current law firm for the
district and retrieving Trustee A’s campaign money through fundraisers.
• Between August 4, 2017, and March 3, 2018, Trustee E emailed the Superintendent on Sunday, he
appeared in Human Resources (HR) unannounced, he called and texted the office of the HISD
Executive Director of Human Resources directly and questioned the qualifications of the HISD
Benefits Coordinator, asking for job description and job requirements, he e-mailed the HISD
Executive Director of Human Resources regarding an inappropriate relationship between a coach
and a student, he raised his voice saying the incident was kept quiet because the student was a
former Board Member’s granddaughter. He further stated he had “heard stuff” about her and as a
Board Member he had a right to know, and that he was disappointed with her. He called the office
asking staff to text him the HR Director’s cell phone number and demanding to speak to him before
she left work that day, he disrupted the day-to-day operation of school staff by visiting the school
campus and circumventing the security/guest sign-in procedures and demanding information that
did not pertain to his role as a Board of Trustee.
• On or about October 19, 2017, Trustee E requested district staff to select a different vendor than
the one that was selected from the RFQ for the Structural Engineer. Trustee E was told that the
selection was presented to the Board and the Board Members voted on the vendor. He was told he
was micro-managing and he was not in line with his duties. Trustee E became angry and left.
• On or about March 3, 2018, Trustee E asked Trustee D to support him in terminating the
Superintendent and re-hiring the former Commissioning Agent. Trustee E would keep on giving
the Superintendent a hard time because he does not want the Superintendent to continue working
with the District.
SIU’s review of board minutes and documents confirmed that the Board of Trustees has been consistently
divided on two critical issues: 1) the repair of a pier(s) to support the structure at Gillette Elementary School
36
and 2) retaining and overpayment of an outside contractor, Jasmine Engineering, for the oversight of
construction projects, instead of a more cost-effective in-house construction oversight.
The former Superintendent, who resigned effective close of business August 31, 2012, informed the TEA
that he was threatened by one former and a current Board of Trustees with the loss of his job if he would
not follow their directive to terminate the Assistant Supervisor of Maintenance/Operations.
Review of electronic communications (group texts) between HISD Board of Trustees on August 18, 2017,
September 22, 2017, and December 30, 2017, show a quorum of the Board conducted a meeting via group
text, deliberated HISD public business and public policy over which the Board has supervision or control,
which was not open to the public. These electronic communications exchanged information and deliberated
regarding city inspection delays, potential delays of a campus opening, district employee work schedules
and pay, curriculum issues, and parent complaints.
The Board disregarded the Building Committee Report dated November 6, 2012, regarding Slay
Engineering’s recommendation to repair one Pier at Gillette Elementary School. Later, the Board followed
Jasmine Engineering’s recommendation to repair thirty-six piers instead, at a much higher cost for the
district than originally quoted by Slay Engineering.
The pier repairs for Gillette Elementary School have been ongoing for over five years and has not yet been
completed. The pier repair costs have increased exponentially, from an original proposal to repair one pier,
at a cost of approximately one hundred eighty-five thousand dollars ($185,000.00) to an estimated cost of
four million, four hundred thousand dollars ($4,400,000.00) to repair thirty-six piers. In addition, the Board
of Trustees have also paid approximately two hundred and twelve thousand dollars ($212,000.00) to
Jasmine Engineering, for the oversight of the project.
The current Superintendent informed the TEA that he was threatened by Jasmine Azima that he would lose
his job if he did not support her as the District’s Project Manager.
SIU requested to interview Jasmine Azima, the representative of Jasmine Engineering. Jasmine Azima
declined to be interviewed on the advice of her attorney.
From 2006 to 2017, the district contracted with an engineering company, Jasmine Engineering, under a
Professional Service Agreement. The district continued the agreement through six (6) contract amendments
and did not make requests for qualifications
• A review of the original contract and the six (6) contract amendments showed that the contracts were
made without the specification of an end-date. This enabled the contractor to keep working for the
district without going through the bidding process, which should have occurred after approximately
two (2) years. Over the course of the years, the scopes of the projects were increased and by vote of the
board, the duration of the contract was amended and prolonged six times.
• Per district statements, the Commissioning Agent, Jasmine Engineering was paid between 1.5% and
6% commission of the Total Project Cost for the oversight of contractors and subcontractors, including
hiring, related to the Bond Projects of 2006, 2008, 2009, and 2015, Priority Projects, and Additional
Projects unrelated to the Original Priority Projects. Jasmine Engineering also was paid hourly and fixed
fees for consulting services as described in contract documents.
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The ranking committee for the selection of potential vendor projects included the Commissioning Agent
with two of her own employees, and two HISD Board Members, thus giving the appearance that the ranking
is biased and unfair to other bidders.
Per cost summary provided by the District, the total commissioning agent fee paid to Jasmine Engineering
to date, for Bond 2015, totals three million, one hundred two thousand, one hundred seventy-three dollars
($3,102,173.00).
During the 2015 Bond Projects, the Board of Trustees added to the scope of work the repair of Piers at the
Gillette Elementary School. One of the initial cost estimates was approximately one hundred eighty-five
thousand dollars ($185,000.00) which was declined through HISD Board vote. Per the district’s statement,
HISD did not find a response to its Request for Proposals for the pier repairs, however; it ended up paying
two hundred twelve thousand, one hundred and fourteen dollars ($212,114.00) in commissioning fees. Per
district statement, the piers, as of today, have not yet been repaired.
Per documentation collected from the district, the selection of qualified applicants for the position of
Assistant High School Principal was made by an interview committee, which did not include the
Superintendent.
Documentation to verify whether the Superintendent engaged in nepotism by hiring his cousin for the
position of High School Principal was no longer available, as the district responded that some of the
information requested is no longer maintained by the district. The district stated in 1997 the district adopted
the Texas State Library and Archives Commission SD and GR schedules.
Analysis
The Superintendent violated district board policy CH (Local) X, when he did not request board approval
for goods or services, regardless of whether the services are competitively purchased, when the amounts
were outside the scope of budgeting authority granted to the Superintendent pursuant to Tex. Educ. Code
11.1511(c)(4).
The Board violated Tex. Educ. Code §§11.1511(b)(9) and 11.1511(b)(15) when it failed to monitor the
District’s finances to ensure that the superintendent was properly maintaining the district’s financial
procedures and records, when it failed to identify the contracts with Terracon Consulting as outside the
budgeting authority granted to the Superintendent or question the payments made to Terracon.
Based on the interviews of the Board of Trustees and former and current district employees, as well as the
review of electronic communications and official reports, SIU investigators identified that certain Trustees
directed the reassignment of district employees, questioned employees about issues outside their scope, for
the sole benefit of that Trustee, in violation of Tex. Educ. Code §11.051(a-1).
The evidence reviewed by TEA demonstrates the dysfunction within the HISD administration and lack of
collaboration within the Board of Trustees and with the Superintendent, in violation of Tex. Educ. Code
§11.1512(a), (b)(3), and (b)(5), which requires the Board of Trustees and the superintendent to work
together to provide educational leadership for the district, including leadership in developing the district
vision statement and long-range education plans, and shall support the professional development of
principals, teachers, and other staff.
38
In addition, based on the interviews and documentation, Trustees A, B, D, E, F and G have acted outside
the scope of their authority by frequenting the district’s campuses, by directly contacting and questioning
district employees about personal and district matters, by intimidating them, disrupting the day-to-day
operations of the Superintendent and District employees, and thereby impeding the district’s ability to
govern and make decisions to carry out the business of HISD and resulted in a failure to collaborate with
the district’s administration, in violation of Tex. Educ. Code §§11.051(a-1), 11.151(b), 11.1512(a) and
(b)(3).
Review of the electronic communications, in the form of written texts, between a quorum of HISD Board
members deliberating on school confirmed that the electronic communications between Trustees were not
posted to an online message board, or similar Internet application, viewable and searchable by the public
in real time nor displayed for 30 days, as required by Tex. Gov’t. Code §551.006. Tex. Gov. Code §551,
restricts members of a governmental body from discussing public business or public policy within their
jurisdiction outside of an open meeting (except for expressly authorized executive sessions).
The Board’s approval of Jasmine Engineering contract amendments with change orders that resulted in a
changed contract over one million ($1,000,000.00). Once the addition of an approved change order to the
original contract resulted in a changed contract over one million ($1,000,000.00), the Board’s approval of
change orders resulting in a cumulative sum of more than 25 percent of the original contract to the total
changed contract, was in violation of Tex. Educ. Code §44.0411(d).
TEA has amended the following analysis: The District circumvented the procurement process in that the
contracts with the Commissioning Agent, Jasmine Engineering, did not contain an effective end-date,
allowing the commissioning agent to continue its work through six contract amendments and multiple
change orders, thus exceeding the $50,000 threshold, in violation of Tex. Educ. Code §44.031, Tex. Gov’t.
Code §2269, and local policy. By doing so, the district did not allow other vendors to participate in a
submission in response to an RFQ for the project of Commissioning Agent and deprived the district of its
opportunity to find the best qualified vendor and best value for the district. The increases in scope of
services over between 2007 through the last contract amendment in 2017, shows a change in
Commissioning Agent fees and types of services rendered. A review of the contracts indicates Jasmine
Engineering served as a Construction Manager-Agent pursuant to Tex. Govt Code §2269.201-206, in
provision of consultation and administration services during the design and construction phases while
managing multiple contracts under various bonds. HISD and Jasmine did not contract under Tex. Govt.
Code §2269.
The Superintendent did not violate the district or state hiring policy, as he brought the recommendation for
the selection of the Assistant High School Principal before the Board of Trustees for voting. The
Superintendent’s daughter chosen for the position of Assistant High School Principal was qualified, and
while having considerably less years of service and experience than other applicants, there was only an
appearance of favoritism.
Regarding the Superintendent hiring his cousin, SIU was unable to determine a violation of district or state
hiring policy due to lack of documentation available for review.
Summary
The findings establish that a systemic breakdown of the HISD Board of Trustees’ ability to govern and
manage HISD prevents the Board from carrying out the powers and duties as provided by the Texas
Education Code or other law, as required by Tex. Educ. Code 11.151(b)(15). This systemic breakdown is
39
demonstrated by the Board failing to oversee and monitor the district finances, taking actions outside the
scope of their authority in directing district employees to perform tasks that personally benefit the Trustees,
and intimidating and questioning former and current employees about their responsibilities, and directing
hiring decisions, in violation of Tex. Educ. Code §§11.1511(b)(9), 11.1512(a), (b)(3), and (b)(5), The
Board’s failure is further evidenced by the Trustees’ inability to appropriately collaborate with the
Superintendent and refrain from exceeding the scope of their authority within the district as required by
Tex. Educ. Code. §11.051(a-1). The HISD Board violated the Texas Open Meetings Act by conducting
meetings in which school business was deliberated, with no exception to the open meetings requirements,
in violation of Tex. Gov’t Code §§551.002.
The HISD Board of Trustees violated contract and procurement requirements in the bidding, contract
approval, contract amendment, and change order process required under Tex. Educ. Code §§44.0411(d),
44.031(a), Tex. Gov’t Code §2269, local policy, as well as §§11.151(b)(15).
Furthermore, the Superintendent exceeded his scope of authority when he entered into four agreements and
made payments to a consulting firm, without board approval, as required by Tex. Educ. Code
§11.1511(c)(4). The Superintendent also violated Tex. Educ. Code §11.152(a-b) by failing to ensure the
implementation of board policies. The Superintendent’s hiring of family members was not substantiated or
undetermined as a violation of Tex. Educ. Code §11.1513 and Harlandale ISD Board Policy DBE (Legal)
015904.
General Response to Recommendation Comments in the District Response of December 21, 2018
A Final Report contains recommendations of referral, corrective action, and sanctions which are
communicated to TEA’s Enforcement Division. The implementation of any recommended action is at the
discretion of that unit and subject to a separate hearing process. As a result, TEA is not persuaded to
change the substance of its recommendations based on the responses provided by Harlandale ISD. The
Agency has determined that the recommendations stand as written.
Recommendations for Referral
As the conduct described above, regarding the Open Meetings Act, may also constitute criminal violations
of Tex. Gov’t Code §551, SIU recommends referral of its findings related to this conduct by the Members
of the Board of Trustees and the Superintendent to the appropriate state or local agencies.
As the conduct described above, regarding contract and procurement, may also constitute a criminal
violation of Tex. Educ. Code §44.032, SIU recommends referral of its findings related to this conduct by
the Members of the Board of Trustees and the Superintendent to the appropriate state or local agencies.
Recommendations for Corrective Action
1. Harlandale ISD must adopt policies and procedures necessary to ensure that, going forward,
required information is obtained and in compliance with the requirements of Tex. Educ. Code
§§11.051, 11.151, 11.1511, 11.1512, 11.1513, 44.031, 44.0411, Tex. Gov’t Code §2269, Tex.
Gov’t Code §§551.002, 551.006.
2. Harlandale ISD must present their required policies that delegate specific duties related to
Governance of Independent School District, Contract Procurement and Conflict of Interest to
Harlandale ISD staff responsible for the execution and adherence of such policies.
40
3. Harlandale ISD must provide a list to TEA of all individuals charged with performing the duties
described in the above-referenced policies. The personnel on this list are required to attend (and
confirm to TEA completion of) subject matter training on these policies and procedures. Any future
Harlandale ISD employees involved in the policy writing and adherence should attend this training,
as well. All training should commence as soon as possible (preferably during the 2019-2020 school
year.)
4. An external Forensic Audit related to Contract/Procurement will be conducted by an independent

auditor at the expense of the district.
Recommendations for Sanctions
As authorized by Tex. Educ. Code. §§39.057(d), 39A.002, 39A.004, Tex. Admin. Code
§§97.1055(b)(2)(B)(ii), 97.1059(b)(1)(E), 97.1073(e)(7)-(8), it is recommended that the Commissioner:
• Lower the Accreditation of HISD, install a TEA Conservator and appoint a Board of Managers to
replace the existing Board of Trustees due to the HISD Board of Trustees and the current
Superintendent’s inability to appropriately govern and oversee the fiscal management of the District
without taking actions outside the scope of their authority, in accordance and §39A.002(7). The above
recommendation will enable the District to function in the best interest of students, while policies and
procedures can be implemented to address the issues raised in this investigation.
• Order a hearing by the HISD Board of Directors to notify the public of the district’s insufficient
performance, the improvements in performance expected by the agency and the interventions and
sanctions that may be imposed under this section if the performance does not improve, in accordance
with TEC §39A.002(2).
• HISD is required to post notice of this hearing as a public meeting to ensure that the general public is
allowed to attend and may not limit the number of speakers who would like to address the board, nor
may the board limit the amount of time any speaker takes to make their statements regarding HISD’s
noncompliance with Governance of Independent School District, Nepotism, Contract Procurement,
Conflict of Interest/Disclosure requirements under Tex. Educ. Code §§11.051, 11.151, 11.1511,
11.1512, 11.1513, 44.031, 44.0411, Tex. Gov’t Code §551.006 and §2269.
TEA reserves the right to implement all available interventions and sanctions under Tex. Educ. Code,
Chapter 39A, §39.102 and 19 Tex. Admin. Code, §97.1073, including 97.1059(a)(b)(1)(E) to address the
current, or any future deficiencies, identified for HISD.
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June 7, 2019 FINAL REPORT

Ricardo Moreno, Board President

Reynaldo Madrigal, Superintendent

Dear Board of Trustees, and Superintendent Madrigal,

Email address: [email protected]

If you have any questions, please contact me at (512) 936-5962.

Jason Hewitt, Director

Final Investigative Report

Harlandale Independent School District

TEA Response to General Comments in HISD Responses to Preliminary Report

A. HISD Request for In-Person Meeting

B. HISD Request for Discovery

C. HISD Challenge to Commissioner of Education Delegation of Authority

E. Findings and Recommendations

G. Comments Related to Vestal and Carroll Bell Elementary Schools

HISD’s Response to Finding #1

TEA’S Informal Review of Finding #3

HISD’s Response to Finding #4

B. THE DESCRIBED TEXT MESSAGING

Friday, September 22, 2017

Saturday, December 30, 2017

Saturday, August 18, 2018

Separate Saturday, August 18, 2018

C. THE TEXAS OPEN MEETING ACT

D. THERE WAS NO QUORUM OF TRUSTEES PARTICIPATING IN 3 OF THE 5 TEXT

E. DELIBERATIONS MUST BE ABOUT MATTERS WHERE GOVERNMENTAL BODY HAS

Tex. Educ. Code §11.151 provides in relevant part as follows:

Friday, September 22, 2017

Saturday, August 18, 2018

F. Tex. Govt. Code §551.006

TEA’S Informal Review of Finding #4

HISD’s Response to Finding #5 and Finding #6:

Matters Relating to Jasmine Engineering, Inc.

B. Two Contracts, Multiple Amendments

C. Internal Audit of Commissioning Expenses and Payments

HISD’s Response to Finding #7:

TEA’S Informal Review of Finding #7:

Amendments to Applicable Law

Tex. Govt Code §2269.201-.208 Construction Manager-Agent Method

HISD Board of Trustees is currently comprised of seven board members.

SIU’s interviews and review of documentation revealed the following:

Examples SIU identified as overreach by HISD Trustees, included:

Recommendations for Referral

Recommendations for Corrective Action

4. An external Forensic Audit related to Contract/Procurement will be conducted by an independent

Recommendations for Sanctions

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