By Denise Pierce, TCSA General Counsel

An appellate court in Austin on Thursday, September 24, heard arguments from three open-enrollment charter schools on the constitutionality of Texas Education Code Section 12.115(c-1), an automatic revocation provision in Senate Bill 2 passed by the Legislature in 2013. Even though Senate Bill 2 did not become effective until September 1, 2013, Section 12.115(c-1) directed the Commissioner of Education to revoke open-enrollment charter schools based on their academic and financial performance in prior school years.

Before the appellate panel of justices Jeff Rose, Bob Pemberton, and Scott Field were American Youthworks Charter School, Honors Academy Charter School, and Azleway Charter School.

They pressed arguments that Section 12.115(c-1) is unconstitutionally retroactive, that the Texas Education Agency denied procedural due process in its implementation of the new law, and that the TEA improperly considered the performance of Honors Academy high school for the 2011-2012 school year.

All three schools had persuaded a Travis County District Court to enjoin the agency’s revocation process against them, but the State of Texas appealed the district court’s ruling in June 2014, setting up for yesterday’s oral arguments before the Third Court of Appeals.

Representing American Youthworks Charter School, attorney Robert Schulman urged the three-judge panel to declare Section 12.115(c-1) unenforceable, and in the alternative, to remand the case for an actual trial in Travis County District Court.

Attorney Kevin O’Hanlon represented Honors Academy Charter School. O'Hanlon said, “The Court was prepared and understood the matters at issue in the case. They appeared to be receptive to consideration of all constitutional as well as the statutory interpretation issues.”

The outcome of the case is uncertain, but all of the attorneys representing the charter schools were optimistic after the argument.

Attorney Susan Morrison, who represents Azleway Charter School, said she was most surprised by the admission of the State’s attorney: "TEA would treat the three former charter schools as non-revoked if they win this appeal, as long as they are otherwise eligible to hold a charter."

The attorneys anticipate a ruling between 90-120 days - likely in early January - but the court is not beholden to a particular deadline.

Notwithstanding this pending litigation, all three charter charters were formally revoked by TEA in 2014 when the agency exercised its lawful authority as a government agency to supersede the district court’s injunction. Consequently, none of the affected charter holders are currently operating a charter school.

All briefing filed in the case can be found on the court’s website, including the amicus curiae brief filed by the Texas Charter Schools Association.