through his next friends, CHARLES and KRISTI CRIPPS, v. HURST- EULESS-BEDFORD INDEPENDENT SCHOOL DISTRICT, DOCKET NO. NO. 216-SE-0114 EE, the Student, by and BEOR § § Petitioners, § § HEARING OFFICER § § § § Respondents. FOR THE STATE OF TEXAS MOTION FOR EXPEDITED REHEARING NOW COMES Ci CH “the student”) by and through his next friends, and natural parents, Mr. Charles and Mrs. Kristi Cripps, collectively referred to as Petitioners herein, by and through their representatives Martin J. Citkiel and Daniel Garza, Attorneys with the Law Firm of Cirkiel & Associates, P.C., and Deborah Liva, EE files this their Motion For Reconsideration, in support of their contention that the Hurst-Euless-Bedford Independent School District (hereinafter referred to “HEB ISD” or the “school district”) violated the various rights of the Student, and in support thereof, Petitioners would respectfully show the following: I. INTRODUCTION AND BRIEF REVIEW OF THE CASE Onor about May 13,2014, the Honorable Hunter Burkhalter, Administrative Law Judge with the State Office Of Administrative Hearings issued his Decision And Order, in the above- referenced and styled cause, On or about May 19°, Mr. Cripps went (o the Bedford Police Department to pick up CHEEIIP’s phone. He was told that the Clerk had to check with Detective Ripley to clear the release of ther phone. Shortly thereafter the Detective cleared the phone for release. Mr, Cripps picked it up on the 21%, ‘When he opened up the telephone he was surprised to see that pictures had not been deleted as he thought but rather were still on the phone. Further, and upon review of the test ony. of Mr, Damon Emery at the recent Due Process Hearing, such testimony was a gross deviation from what in actuality is depicted in the photographs, Motion For Expedited Rehearing 1Moreover, since the Hearing Officer’s Decision significantly relied upon Emery’s testimony, and in fact part of the decision absolutely ‘urned on such misleading testimony, the Petitioner's now ask that they be permitted to present more fully this newly discovered evidence; see Tex. R. Civ. P. 324(b)(1); that their Motion For Expedited Rehearing (Tex. Gov't Code §2001.145) be granted; that Emery’s testimony be stricken from the record or in the alternative given little weight, that the Respondent be appropriately sanctioned, 89 T.A.C §89.1170(¢), and that previous Decision And Order be modified accordingly. II, RELEVANT PROCEDURAL AND FAC AL RESUME Petitioner relies upon all the statements and arguments provided by both the Respondent School District as well as themselves, in this cause, as well the Disclosures provided and testimony rendered at the Due Process Hearing of March 19- 20, 2014. At the Hearing on March 19, 2014 CHEE testified, among other things, as to the taking of pictures of RIM. while they were in the bathroom. Most relevant to this Motion he reiterates that he followed NII and RII to an open bathroom stall (Tr. Vol. I, p. 56, 1. 11), that he chose a the stall with no door (Tr. Vol. I, p. 57, 1. 811), that RIP hands were up and he had a smirk on his face (Tr. Vol. I, p. 58, 1. 15-20; p. 59, 1. 7-8), that he did not cover up his face and struck a pose with hands up (‘Ir. Vol. I, p. 62,1. 12-16). On the same or similar matters Emery states that “What I saw in the pictures was the other student, who was sitting, sitting on the toilet and he had one hand down grasping his pants and the other hand grasping his shi And that was pretty much the pose for all three pictures that were taken (Tr, Vol. I, p. 249, 1. 17-25; p. 250, |. 1-2). When asked about REED s “ceemeanor” in the pictures, Emery responded: A.“.. He was very upset” (Tr. Vol. I, p. 250, 1. 7); and later as to the same question about demeanor by the Schoo! Distriet’s Counsel, Ms. Mathews (at 1. 16): A. “... his demeanor was he doing everything he possibly could, not to be embarrassed, Original Petition 210. i. humiliated in such a manner” (Tr, Vol. I, p. 250, l. 17-23); Q. (By the Hearing Officer) “... are you indicating that he was trying to shield (his) private area .... his genitalia” (Tr. Vol. I, p. 251, 1. 3-9); A. “Yes, sir, that’s my indication” (Tr. Vol. 1, p. 251, 1. 10-11); Q. (By Ms. Matthews) “And did all three pictures depiet what you've just described to us?” (Tr. Vol. I, p. 251, 1. 17-18); A. “Yes, all three pictures did depict that“ (Tr. Vol. I, p. 251, 1. 19). Til. THE PICTURES IN QUESTION Filed and incorporated herein as is if fully set forth, Petitioners provide the three pictures in question and additionally describe them in this narrative, First and foremost all three pictures show the young man sitting on the toilet. There is no door on the bathroom stall. The pictures are similar to each other but are somewhat different as well. THE FIRST PICTURE The first picture shows HE sitting on the toilet with his clothing completely covering up his body, including his genital area, He is wearing a sweatshirt covering up his arms. He is also wearing sweat pants that appear to be entirely covering his waist. There is no skin showing beneath his waist at all or anywhere at all for that matter, except for the skin showing is his hands. His face is looking downward and again, there is no skin showing here at all. Only his hair is showing. There is no demcanor of RAM in this picture at all, If he was upset, ‘embarrassed or humiliated there is absolutely nothing in the picture at all that would support Emery’s statement. More importantly, at the Hearing, and while it would not show up in the transcript, Emery made a grimace attempting to show how RIE looked while sitting on the toilet. This too was an absolutely false representation of what the picture(s) depict. Emery also stated that RAI had one hand down grasping his pants and the other hand grasping his shirt. This statement is likewise 100% incorreet, as was the other. Rather both Original Petition 312. 13. 14, 15. of RARE s arms are resting on the area between his knees and upper thighs with his hands clasped together easily about 12-16 inches away from his genital area and quite obviously not intending to cover anything up at all. There is nothing in Riggs placement of his arms that evidences a conscious effort to cover up his body or his genitalia as Emery both stated and quite emphatically inferred. Nor is RIM using his hands or arms to cover up his genital area, his face (for instance to hide embarrassment as Emery also specifically inferred) or use his hands, arms, feet or legs in any way to support his statement, CEEEN’s simple rendition of the picture is 100% consistent. Emery’s testimony is not 100% consistent with the pictures. In fact his statements noted above are 100% inconsistent. ‘There is nothing in the picture at all that would supports Emery’s statements, let alone any reasonable inference, that RII did not consent to the picture or expected any aspect of privacy while he was defecating, As we know, ChE testified that when REE defecated and wiped some of the feces on a toilet paper he showed to at least two other students, which Emery’s second investigation confirmed. (Tr. Vol. I, p. 134, 1. 19-23). ‘THE SECOND PICTURE ‘The second picture is substantially similar to the first except that it appears to taken from a closer position. All the misrepresentations and n hharacterizations made by Emery for the first picture hold equally true for the second, ‘THE THIRD PICTURE This picture is also substantially similar to the first except it too was taken fiom a closer position, In this picture RIP hands are not clasped anymore, His arms and elbows are apart, so much so that his genital area (which was covered up by his pants, not his arms as Emery clearly misstates) is absolutely open. Most stikingly, in this picture a very small part of RIBEEI’s face is showing. It is somewhat difficult to tell but it seems that RAMEE is smirking which would be consistent with CEs testimony and not Emery’s. Of course, Original Petition 4evenif fora moment we consider Emery’s perception as correct (or atleast not unreasonable) that EEE 's face shows a grimace (which is somewhat normal when defeeating), that is surely not the same thing as Emery’s very adamant statement that RIMM appeared to be "upset, embarrassed and humiliated or attempting to cover up his genital area, CONCLUSION ied on behalf of the Respondent School Distriet grossly 1 16, Damon Emery, who testi characterized the pictures CII took of PAIL in regard to his mannerisms, where his hands and arms rested and his fa s- expressions. His false and misleading commentary is particularly troubling because Emery was emphatic in that all three pictures were the same, which they were not, His false and misleading commentary is particularly problematic because Emery was equally emphatic that RIIIEE’s demeanor expressed displeasure in the pictures, which likewise is quite obviously is a false statement, He very concretely and di inetly expressed at the Hearing that RIE was grimacing in the pictures, which is likewise false. Importantly, the impression he gave to this Hearing Officer in both word and his own demeanor, was that RIE was attempting to express his displeasure at having his picture taken at all by CHINE. There is nothing in the pictures that support Emery's statement, 17, AsPetitioners normally have ninety (90) to appeal the Hearing Officer Decision, Petitioners request that this Expedited Motion For Rehearing be granted and the relief requested below, be provided accordingly. PRAYER 18 WHEREFORE, PREMISES CONSIDERED, Petitioners request their Motion For Rehearing be GRANTED, that the decision to do so be Expedited, that Emery’s testimony be stricken from the record or in the alternative given little weight, that the Respondent be appropriately sanctioned, that previous Decision And Order be vacated and modified accordingly; and an Order to take any and all other specific actions required or permitted by Original Petition 5law, and for such other telief as the Hearing Officer deems just and proper, whether it be at law, or in equity or both. Original Petition ai » [Email] 13150 FM 529, Suite 118 Houston, Texas 77041 (713) 965-6936 [Telephone] (512) 244-6014 [Facsimile] Deborah Liva, L nse 3830 Old Denton Koad, Carrolton, Texas 75007 (972) 492-7124 [Business] (210) 834-3807 [Cell] (072) 408-3432 [Facsimile] REPRESENTATIVE FOR PETITIONERSCERTIFICATE OF SERVICE This is to certify that on this the 2"' day of June, 2014 a true and correct copy of the above and forgoing document was served on the parties listed below pursuant to the Texas Rules of Civil Procedure. ‘The Honorable Hunter Burkhalter, Judge Presiding Hearing Officer fice 300 West 15" Street ‘Austin, Texas 78701 (512) 463-0203 [Telephone] (512) 322-2061 [Facsimile] VIA HAND-DELIVERY Ms. Nona Matthews, Attorney mm [Via Emait] ‘Ms. Jan Watson, Attorney jwatsonawabsa.com [Via Email] ‘Walsh, Anderson, Gallegos, Green & Trevino, P.C. 105 Decker Court Suite 600 Inving, Texas 75062 214) 574-8800 [Telephone] (214) 574-8801 [Facsimile] Attomeys For Respondent School District VIA HAND-DELIVERY Marlin 7. Cikiel Original Petition 1DOCKET NO. NO. 216-SE-0114 CEE CHIME, the Student, by and § through his next friends, CHARLES and § BEFOR: KRISTI CRIPPS, § 8 § HEARING OFFICER v. § HURST- EULESS-BEDFORD § INDEPENDENT SCHOOL DISTRICT, — § Respondents. § FORTHE STATE OF TEXAS ORDER ON MOTION FOR REHEARING On = came to be considered Petitioners Motion For A Rehearing. After considering the evidence adduced at the hearing on this request, the Court finds that good cause exists for such Temporary Order and said Motion JRANTED, ‘THE COURT FURTHER FINDS that the previous Decision and Order should be vacated and modified. Such Amended Decision and Order shall be entered within days. Signed on: Tudge Presiding Motion For Expedited Rehearing 1