Tuesday, March 06, 2007
TEXAS UNEMPLOYMENT COMPENSATION LAW
TEXAS UNEMPLOYMENT COMPENSATION LAW
A. Sources of Law, Organization, and Websites
The Texas Unemployment Compensation Act is found at TEX. LABOR CODE ANN.
CHAPTER 201.
The “Texas Workforce Commission” (referred to herein as “TWC”) is the state agency
that administers the act pursuant to TEX. LABOR CODE ANN. CHAPTER 301. Prior to 1995,
the agency that administered the act was called the “Texas Employment Commission,” and the
older case law will refer to it (or TEC) rather than the Texas Workforce Commission or TWC.
Pursuant to TEX. LABOR CODE ANN. §§301.061 and 302.002, the TWC has enacted rules and
regulations, and the rules and regulations for unemployment insurance may be found at 40 TEX.
ADMIN. CODE Chapter 815. UNEMPLOYMENT INSURANCE.
TWC has a detailed website at http://www.twc.state.tx.us. You will need to make sure
that you have Adobe Acrobat Reader to access many of the items in the website. When you
open the website, it will have a map of Texas surrounded by boxes with various headings that are
interactive links to the website. Click on the heading that says “JOB SEEKERS AND
EMPLOYEES”. When you click on this heading, it will take you to a table of contents and the
topics are also interactive links to the site. Click on the heading that says “Unemployment Claim
and Appeals Information,” and it will take you to the table of contents for “Unemployment
Claim and Appeals Information,” which is located at the following address:
http://www.twc.state.tx.us/customers/jsemp/jsempsub2.html. Another helpful part of the website
is the table entitled “Laws: Statutes and Rules” located at
http://www.twc.state.tx.us/customers/rpm/rpmsub1.html and the headings are interactive links to
the laws and rules.
The website includes a complete copy of the above mentioned rules, and the index to the
rules may be found in a table located at http://www.twc.state.tx.us/twcinfo/rules/twcrules.html.
The unemployment compensation rules are found in Chapter 815 in the table and may be
accessed in either PDF (requires Adobe Acrobat to read) or Word 97 format. In addition to the
rules, the TWC Appeals Manual, which describes the appeals process and states the procedures
for the handling of appeals, may be found at http://www.twc.state.tx.us/ui/appl/app_man1.html.
The TWC Appeals Policy and Precedent Manual, which contains digest paragraphs of case
holdings made or approved by the Commission and designated by the Commission to stand as
precedent, is available online also at http://www.twc.state.tx.us/ui/appl/app_manual.html.
A. Sources of Law, Organization, and Websites
The Texas Unemployment Compensation Act is found at TEX. LABOR CODE ANN.
CHAPTER 201.
The “Texas Workforce Commission” (referred to herein as “TWC”) is the state agency
that administers the act pursuant to TEX. LABOR CODE ANN. CHAPTER 301. Prior to 1995,
the agency that administered the act was called the “Texas Employment Commission,” and the
older case law will refer to it (or TEC) rather than the Texas Workforce Commission or TWC.
Pursuant to TEX. LABOR CODE ANN. §§301.061 and 302.002, the TWC has enacted rules and
regulations, and the rules and regulations for unemployment insurance may be found at 40 TEX.
ADMIN. CODE Chapter 815. UNEMPLOYMENT INSURANCE.
TWC has a detailed website at http://www.twc.state.tx.us. You will need to make sure
that you have Adobe Acrobat Reader to access many of the items in the website. When you
open the website, it will have a map of Texas surrounded by boxes with various headings that are
interactive links to the website. Click on the heading that says “JOB SEEKERS AND
EMPLOYEES”. When you click on this heading, it will take you to a table of contents and the
topics are also interactive links to the site. Click on the heading that says “Unemployment Claim
and Appeals Information,” and it will take you to the table of contents for “Unemployment
Claim and Appeals Information,” which is located at the following address:
http://www.twc.state.tx.us/customers/jsemp/jsempsub2.html. Another helpful part of the website
is the table entitled “Laws: Statutes and Rules” located at
http://www.twc.state.tx.us/customers/rpm/rpmsub1.html and the headings are interactive links to
the laws and rules.
The website includes a complete copy of the above mentioned rules, and the index to the
rules may be found in a table located at http://www.twc.state.tx.us/twcinfo/rules/twcrules.html.
The unemployment compensation rules are found in Chapter 815 in the table and may be
accessed in either PDF (requires Adobe Acrobat to read) or Word 97 format. In addition to the
rules, the TWC Appeals Manual, which describes the appeals process and states the procedures
for the handling of appeals, may be found at http://www.twc.state.tx.us/ui/appl/app_man1.html.
The TWC Appeals Policy and Precedent Manual, which contains digest paragraphs of case
holdings made or approved by the Commission and designated by the Commission to stand as
precedent, is available online also at http://www.twc.state.tx.us/ui/appl/app_manual.html.
207.041. SERVICES IN EDUCATIONAL INSTITUTIONS: "reasonable assurance that the individual will perform services
§ 207.041. SERVICES IN EDUCATIONAL INSTITUTIONS. (a)
Benefits are not payable to an individual based on services
performed in an instructional, research, or principal
administrative capacity for an educational institution for a week
beginning during the period between two successive academic years
or terms or under an agreement providing for a similar period
between two regular but not successive terms if:
(1) the individual performed the services in the first
of the academic years or terms; and
(2) there is a contract or reasonable assurance that
the individual will perform services in that capacity for any
educational institution in the second of the academic years or
terms.
(b) Benefits are not payable to an individual based on
services performed for an educational institution in a capacity
other than a capacity described by Subsection (a) for a week that
begins during a period between two successive academic years or
terms if:
(1) the individual performed the services in the first
of the academic years or terms; and
(2) there is a reasonable assurance that the
individual will perform the services in the second of the academic
years or terms.
(c) Notwithstanding Subsection (b), if benefits are denied
to an individual for any week under Subsection (b) and the
individual is not offered an opportunity to perform services for
the educational institution for the second of the academic years or
terms, the individual is entitled to a retroactive payment of the
benefits for each week that:
(1) the individual filed a timely claim for benefits;
and
(2) the benefits were denied solely because of
Subsection (b).
(d) Benefits are not payable to an individual based on
services performed for an educational institution for a week that
begins during an established and customary vacation period or
holiday recess if:
(1) the individual performed the services in the
period immediately before the vacation period or holiday recess;
and
(2) there is a reasonable assurance that the
individual will perform the services in the period immediately
following the vacation period or holiday recess.
(e) Benefits are not payable as provided under this section
to an individual based on services performed in an educational
institution if the individual performed the services while employed
by an educational service agency. For the purposes of this
subsection, "educational service agency" means a governmental
agency or other governmental entity that is established and
operated exclusively to provide services to one or more educational
institutions.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. TPU 105.00: Substitute teachers may have reasonable
7. The following is current Commission policy, Appeal No. 82-4799-10-0782 (TPU 105.00), with regard to substitute teachers:
8. The following are some factors the Hearing Officer should keep in mind when deciding whether or not a substitute teacher had reasonable assurance of being called the next year or term:
- The Hearing Officer should find out how long the claimant has been on a substitute teacher list for this employer and how many times they have been called.
- The Hearing Officer should also determine the total number of people on the past substitute list and the probable number of people on the next year's list.
- The method the employer uses in determining what people will be called from the substitute list should be explored.
APPEALS POLICY AND PRECEDENT MANUAL
TOTAL AND PARTIAL UNEMPLOYMENT
TPU 105.00
TPU 105.00 CONTRACT OBLIGATION.
INCLUDES CASES IN WHICH THE CLAIMANT'S CONTRACTS
OR AGREEMENTS HAVE AN EFFECT ON DETERMINING HIS
UNEMPLOYMENT STATUS.
Appeal No. 82-4799-10-0782. Substitute teachers may have reasonable
assurance of continued employment within the meaning of
Section 3(f) (now codified as Section 207.041) of the Act. In determining
whether such reasonable assurance exists with regard to
substitute teachers, the following criteria should be utilized:
The school district must furnish to the Commission
written statements which provide facts that the substitute
teacher has been asked to continue in the
same capacity for the following academic year. Simply
placing the substitute teacher on a list for the following
year does not establish reasonable assurance.
It must be shown that both parties expect the relationship
to resume at the beginning of the following
year. The assurance must also be based on past experience
with regard to the number of substitutes
needed in the past.
17 comments:
1.SHOULD THIS COURT RECONSIDER ITS DECISION IN BAUDER V. STATE, 921 S.W.2D 696 (TEX.CR.APP. 1996)?
2.IS THE MERE SHOWING THAT A PROSECUTOR RECKLESSLY ENGAGED IN CONDUCT THAT REQUIRED THE DECLARATION OF A MISTRIAL, WITHOUT SHOWING THAT THE PROSECUTOR INTENDED TO INDUCE SUCH MISTRIAL, SUFFICIENT TO ORDER A DOUBLE JEOPARDY BAR TO REPROSECUTION FOR THAT OFFENSE?
3.DID THE COURT OF APPEALS CORRECTLY APPLY THE BAUDER STANDARD?
1. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER DID NOT RECEIVE INEFFECTIVE ASSISTANCE WITHOUT CONSIDERING WHETHER THE INEFFECTIVENESS WAS DUE TO,MATTERS BEYOND COUNSEL'S CONTROL?
2. THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL RECORD ON ITS FACE DOES NOT SUPPORT PETITIONER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
3. THE COURT OF APPEALS ERRED IN FINDING THAT THE MOTION FOR NEW TRIAL TRIAL RECORD ON ITS FACE DOES NOT SUPPORT PETITIONER’S CLAIM OF 6TH AMENDMENT COMPULSORY PROCESS VIOLATIONS?
1. THE THIRTEENTH COURT OF APPEALS ERRED IN FAILING TO CONSIDER ALL OF THE EVIDENCE UPON ITS LEGAL SUFFICIENCY REVIEW.
3. DID THE 13TH COURT OF APPEALS ERR IN DECIDING AN IMPORTANT QUESTION OF APPELLATE LAW (SILVERUND V STATE)AND THEN APPLYING IT INADEQUATELY WITHOUT CONSIDERING THE BENEFIT TESTIMONY OF AN APPELLEE WHO DOES NOT FILE A REPLY BRIEF?
SHOULD APPELLANT HAVE REPRESENTATION DURING THE CRUCIAL PERIOD WHEN THE APPPELLEE'S REPLY BRIEF IS DELINQUENT?
TO EXCLUDE TESTIMONY IN A MOTION FOR NEW TRIAL?, BUT SHOULD BE, SETTLED BY THE COURT OF CRIMINAL APPEALS?
DID THE 13TH COA ERR IN THE APPLICATION STRICKLAND V WASHINGTON BY CONTRADICTING ITSELF?
IN THE FIRST PRONG When considering claims of ineffective assistance of counsel, appellate courts are not permitted to speculate about what evidence was not presented. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).Because the record does not affirmatively reflect what the testimony of Cano would have been, we hold appellant has failed in her burden of providing a record which "affirmatively demonstrate[s] the alleged ineffectiveness." Thompson, 9 S.W.3d at 813.
IN THE SECOND PRONG , we note that the essence of Cano's testimony was before the jury.
1.WHEN THERE IS A CONFESSION OF ERROR AND THE CONFESSION OF ERROR IS INTERTWINED WITH THE BENEFIT OF EXCLUDING TESTIMONY ESTABLISHED IN A MOTION FOR NEW TRIAL, MUST AN APPELLATE COURT CONSIDER ALL THE EVIDENCE IN THE RECORD WHEN CONDUCTING A HARM ANALYSIS?
2. WHAT IS THE PROPER TEST FOR ANALYZING HARM WHEN CONSIDERING THE EFFECTS OF THE INADMISSION OF EXCULPATORY EVIDENCE OR LAW AND THE EVIDENCE OR LAW IS NOT DISCOVERED UNTIL THE TERTIARY APPEALS PROCESS?
IF PROCESS REMAINED UNDISCOVERED DUE TO DENIAL OF MATERIAL / EXPERT WITNESS MARY CANO?
1.THE 13TH COURT OF APPEALS INCORRECTLY PLACED A BURDEN ON APPELLANT TO SHOW HARM.
2.THE 13TH COURT OF APPEALS FAILED TO ADDRESS THE MAIN ASSERTIONS THAT SUPPORTED APPELLANT’S CLAIM
1. The State's failure to file a brief demonstrates, at the least, a lack of interest and also a lack of confidence in the convictions and sentences obtained. A prosecutor's office should demonstrate its obligation to represent the interests of the public.
5. The failure of the State to file a brief and contest the allegations and claims of an appellant leaves the court in a position in which it accepts appellant's claims on the issue of ineffective assistance of counsel.
7. The failure of counsel to investigate and subpoena his or her client's alibi witness can be ineffective assistance of counsel if the client is prejudiced by such failure.
The State's failure to file a brief and to contest appellant's allegations concerning his attorney leaves us with little choice but to believe that appellant's attorney acted as appellant indicates in his brief. This is one consequence of the State's failure to file a brief with this court or to deny the contents of appellant's brief.
In State v. Lueder, 267 N.W.2d 555, 556 (N.D. 1978), we said that we look "with strong disfavor upon the irresponsible practice of filing a late brief." We look with even stronger disfavor upon the more irresponsible practice of not filing a brief at all. As we explained in State v. Abrahamson, 328 N.W.2d 213, 215 n.1 (N.D. 1982), an "appellate court does not serve as both a judge and an advocate for the appellee," and the "failure of the State's Attorney to file a brief places an undue burden on this court."
An appellee's failure to file a brief has "repeatedly been condemned by the courts." Id. (collecting cases). While a State's Attorney may not have a specific statutory duty to defend a criminal appeal here, we are unwilling to say that the decision to ignore a criminal appeal is within a prosecutor's discretion. A State's Attorney is usually the sole advocate of the people of North Dakota in a criminal case, and the responsibility to defend a criminal appeal extends to even an appeal that the State's Attorney believes is without merit. In addition to placing an unnecessary burden on this Court, the failure to defend a criminal appeal represents a potential breach of the public's trust.
1. The Benson County State's Attorney failed to file a brief or otherwise appear to defend Robert's appeal. Therefore, the State's position on Robert's arguments is uncertain. In State v. Lueder, 267 N.W.2d 555, 556 (N.D. 1978), we said that we look "with strong disfavor upon the irresponsible practice of filing a late brief." We look with even stronger disfavor upon the more irresponsible practice of not filing a brief at all. As we explained in State v. Abrahamson, 328 N.W.2d 213, 215 n.1 (N.D. 1982), an "appellate court does not serve as both a judge and an advocate for the appellee," and the "failure of the State's Attorney to file a brief places an undue burden on this court."
As a practical matter, an appellate reversal for factually insufficient evidence may result in the State offering a particularly advantageous plea bargain or dismissing the case because, after years in the appellate orbit, the witnesses are unavailable, judicial resources are limited, and trial dockets are crowded. Whether either of these results serves the public interest is doubtful.
Can the Appellee benefit from confession of error not filing a reply brief excluding testimony favorable to the appellant?
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