956 P.2d 1052 (1998)
153 Or. App. 247
STATE of Oregon, Respondent,
v.
Carolyn Elizabeth HESTER, Appellant.
C951612CR; CA A94876.
Court of Appeals of Oregon.
Argued and Submitted December 23, 1997.
Decided April 1, 1998.
Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.
Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.
EDMONDS, Judge.
Defendant was convicted of possession of a controlled substance. ORS 475.992. She appeals the trial court's denial of her pre-trial motion to suppress evidence of methamphetamine in her possession. We affirm.
On June 8, 1995, at approximately 3:00 a.m., Officer Noragon stopped a car in which defendant was a passenger when the driver failed to signal, apparently as she pulled over to pick up a friend. The car was owned by defendant. Noragon issued the driver a citation for driving while uninsured and told the driver and defendant that they were free to leave. Defendant and the driver then waited in the car at the scene of the stop while Trisha Drey, the person who defendant and the driver intended to pick up, looked for some personal property that she had lost in the bushes along the side of the road. Drey *1053 asked Noragon if he would help her look for her property. He agreed, turned off his overhead lights on his patrol car and assisted Drey by shining a flashlight into the bushes. They were unsuccessful in finding the lost property, and, at that point, the officer again advised the occupants of the vehicle that they were free to leave.
Noragon then began to walk back to his patrol car. The driver of the car started up the engine in the vehicle and began to roll slowly forward. Noragon then walked back to the passenger side of the car and asked defendant through the open passenger window if he could talk to her for just a minute. Defendant agreed and got out of the vehicle. Noragon then advised her that she was free to leave, but also explained that it was part of his job to ask about property, drugs and guns. He asked defendant if she was in possession of any of those items. She indicated that she was not.
Noragon then requested if he could search the vehicle "for this type of property," and defendant agreed. Noragon asked defendant if she had any weapons on her person. Defendant said "No," but that she did have a knife in her purse. Noragon asked if he could remove the knife from the purse, and defendant said she wanted to remove the knife. Noragon informed her that "for officer safety reasons," he needed to remove the knife. After a discussion, defendant allowed Noragon to remove the knife. While searching for the knife, Noragon found a box that he recognized as a scale. Defendant said the scale was her boyfriend's and consented to Noragon's request to examine it. Noragon opened the box and confirmed that it was a scale.
Noragon also saw a silver container in the purse. He requested permission to look inside it, and defendant agreed. Noragon discovered "50 to 100 small little plastic baggies," which defendant explained were used to store jewelry. Noragon recognized the baggies as common receptacles used to package drugs. He asked defendant where he would find drugs in her property. Defendant then picked up her wallet from the hood of the vehicle, removed a small plastic baggy from the front zipper pocket and gave it to Noragon. At that point, Noragon advised defendant of her Miranda rights and placed her under arrest for the charge that led to her conviction and is the subject of this appeal. The substance in the baggy later tested positive for methamphetamine.
On appeal, the only argument that defendant makes is that Noragon violated ORS 810.410(3)(b)[1] when he asked if he could search for drugs. She contends that the state failed its burden to establish that the traffic stop had ended and that the case is controlled by our holding in State v. Hadley, 146 Or.App. 166, 932 P.2d 1194 (1997). In Hadley, we held that
"a traffic stop continues until the motorist has had an objectively and temporally reasonable opportunity to move on. As a practical matter, that means, in virtually all instances, that the traffic stop continues for Dominguez-Martinez[, 321 Or. 206, 895 P.2d 306 (1995),] purposes until the motorist has had a `real time' opportunity to move on. There must, in other words, be a distinct temporal `break in the action' between an officer's indication that a motorist is free to go and any unrelated inquiries." 146 Or.App. at 171-72, 932 P.2d 1194.
We conclude that the circumstances in this case demonstrate that there was an objectively reasonable opportunity for the vehicle to leave after the traffic stop ended and before Noragon requested consent to search. After Noragon finished issuing the citation, he told defendant and the driver that they were free to leave. He then returned to his patrol car, turned off his overhead lights and proceeded to help Drey search for her lost property. By that time, the traffic stop had clearly ended and both the driver and defendant could have left. The evidence is clear that their motivation in remaining on the scene was to wait for Drey while she *1054 searched for her property. Moreover, Noragon was then engaged in an activity that was completely unrelated to the traffic stop.
The facts of this case differ from the facts in both Dominguez-Martinez and Hadley. In State v. Dominguez-Martinez, 321 Or. 206, 208, 895 P.2d 306 (1995), the officer told the defendant that he was free to leave, but the officer kept his arm on the vehicle door and within one or two seconds, asked if he could ask a few more questions. In Hadley, the officer told the defendant that he was free to leave, but the defendant was still standing outside of the car when the officer made his request to search. 146 Or.App. at 168, 932 P.2d 1194. In both cases, the defendants never had an objectively reasonable opportunity to leave the scene of the stop before they were confronted with the request to search.
The converse is true here. The stop had ended when Noragon told defendant that she was free to leave and when he returned to his patrol car to turn off his lights. Moreover, Noragon told defendant that she was free to leave on three separate occasions before he requested consent to search, and an intervening event occurred while Noragon helped Drey search for her property. Defendant chose not to leave the scene so that she could wait for Drey, who had not been an occupant of the vehicle before that time. Thus, the evidence demonstrates that defendant had an objectively reasonable opportunity to drive away before Noragon made his inquiry. Accordingly, the trial court did not err in denying defendant's motion.
Because of our result, we do not reach the state's arguments regarding Ballot Measure 40 or SB 936 (Or. Laws 1997, ch. 313, § 1).
Affirmed.
NOTES
[1]  ORS 810.410 provides, in part:

"(3) A police officer:
"* * * * *
"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation."


164 B.R. 678 (1994)
In re IRWIN YACHT SALES, INC., d/b/a Harborside Marina & Yacht Basin, Debtor.
Bankruptcy No. 93-3434-8P1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
January 26, 1994.
*679 Ginnie Van Kesteren, St. Petersburg, FL, for debtor.
Allan C. Watkins, Tampa, FL, for Eugenia D. Newell.
ORDER ON MOTION FOR RELIEF FROM ORDER GRANTING RENEWED MOTION TO ASSUME LEASE
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion for Relief from Order Granting Renewed Motion to Assume Lease filed by Eugenia Newell (Newell), the former spouse of Michael Irwin (Irwin), the principal of Irwin Yacht Sales, Inc. (Debtor). In her Motion, Newell seeks relief from an Order of this Court dated September 2, 1993 which granted the Motion of the Debtor, and authorized the Debtor to assume a lease. The facts relevant to resolution of this matter are as follows:
The Debtor operates a marina, yacht basin and boat storage facility located at 9333 Blind Pass Road, St. Petersburg Florida known as Harborside Marina & Yacht Basin. The Debtor occupies this location pursuant to a written lease agreement (Lease) dated April 29, 1982 between the Debtor and Irwin, who was at that time the sole record owner of the commercial property involved in this controversy. The Lease provides for a ten year term, with an option to renew for an additional ten years. As noted earlier, at the time this lease was executed, the premises were owned solely by Irwin.
On June 10, 1983, the Circuit Court of Pinellas County entered a Final Judgment of Dissolution of Marriage dissolving the marriage of Irwin and Newell. The Final Judgment granted to Newell a special equity in the premises, and to assure her interest, the final decree awarded Newell one-half interest in the property, to hold the interest as a tenant in common with Irwin. To effectuate the decree, on August 18, 1983, Irwin executed a quit-claim deed conveying one-half interest to the property involved to Newell. In 1992, when the ten year term of the Lease expired, the Debtor exercised its option to renew the Lease for an additional ten years. Newell acquiesced to the renewal of the Lease.
On April 7, 1993, the Debtor filed a Motion to Assume Lease relating to the property involved. On May 24, 1993, this Court entered an Order granting the Motion, and authorizing the Debtor to assume the Lease. On June 1, 1993, Newell filed a Motion for Rehearing of the Order Granting Motion to Assume Lease. This Motion was heard in due course, at the conclusion of which, this Court granted the Motion, and vacated the previous Order Authorizing Assumption of the Lease.
On August 17, 1993, the Debtor filed a renewed Motion to Assume Lease. This Motion was granted by the Court on September 1, 1993. Newell subsequently filed a Motion for Relief from Order Granting Motion to Assume, which is the matter currently before this Court.
In her Motion, Newell contends that she did not receive notice of the Renewed Motion to Assume Lease, and therefore was not in the position to object to assumption of the Lease. In opposition, the Debtor contends that Newell is not a party in interest and does not have standing to object to the assumption of the lease.
Assumption of leases is governed by § 365 of the Bankruptcy Code, which provides in pertinent part as follows:
§ 365. Executory contracts and unexpired leases
(a) Except as provided in section 765 and 766 of this title and in subsections (b), (c) and (d) of this section, the trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor.
(b)(1) If there has been a default in an executory contract or unexpired lease of the debtor; the trustee may not assume such contract or lease unless at the time of assumption of such contract or lease, the trustee
(A) cures, or provides adequate assurance that the trustee will promptly cure, such default;
(B) compensates, or provides adequate assurance that the trustee will promptly *680 compensate, a party other than the debtor to such contract or lease, for any actual pecuniary loss to such party resulting from such default; and
(C) provides adequate assurance of future performance under such contract or lease.
It is clear that the parties in interest in this controversy are the landlord and the Debtor, i.e. the parties to the lease. It is equally clear that inasmuch as Newell was not a party to the lease, she has no standing to oppose the Debtor's attempts to assume the lease in question. As long as the Debtor can show that it can satisfy the requirements set forth in § 365 for assumption of the lease, and the landlord is satisfied with the assumption, this Court has no difficulty in approving the assumption. Approval of the assumption, would of course, be without prejudice to Newell to pursue whatever rights and remedies shall may have in a nonbankruptcy forum, including the imposition of an equitable lien upon the rents collected by Irwin.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Relief from Order Granting Renewed Motion to Assume Lease is hereby denied. The Order Granting Renewed Motion to Assume Lease is hereby affirmed.
DONE AND ORDERED.


358 F.Supp. 338 (1973)
George HAMILTON et al., Plaintiffs,
v.
Monroe LOVE, Sheriff of Pulaski County, et al., Defendants.
No. LR-70-C-201.
United States District Court, E. D. Arkansas, W. D.
April 25, 1973.
*339 Philip E. Kaplan, Walker, Kaplan & Mays, Linda Scholle, Legal Aid Bureau of Pulaski County, Little Rock, Ark., for plaintiffs.
Lee Munson, Pros. Atty., Jimmy Patton, Deputy Pros. Atty., Little Rock, Ark., for defendants.
EISELE, District Judge.
The complaint in this action was filed on September 30, 1970, and the Court has maintained jurisdiction over the matter from that date forward. Plaintiffs sought a declaratory judgment and preliminary and permanent relief on the grounds that the conditions of their incarceration in the Pulaski County Jail constituted violations of their rights to equal protection of the law, procedural and substantive due process and amounted to cruel and unusual punishment. The specific allegations were numerous and have been a source of concern during the entire pendency of this suit.
At a February 24, 1971 hearing the parties submitted a stipulation to the Court wherein defendants admitted that the general conditions existent at the jail did not meet minimum federal constitutional requirements. The stipulation went further in detailing actions to be taken by defendants to bring the physical facility and its operation up to minimum constitutional standards. At that time it was contemplated that a new jail facility, which was then in the initial planning stage, would be completed *340 by December of 1973. Plans have gone forward but there have been delays. It now appears that occupancy of that facility will, at the earliest, take place in July of 1974.
The Court entered an "interim order" on February 24, 1971, directing defendants to implement the agreement evidenced by the stipulation of the same date. Following "status reports" from both parties, two additional hearings and an on-site inspection, the Court filed a comprehensive memorandum opinion on June 2, 1971.[1] An Interim Decree directing specific action by defendants followed the opinion on June 22, 1971. The last two paragraphs of that decree read:
"Defendants will advise the Court, on or before July 30, 1971, of the progress they have made in implementing the Stipulation, heretofore filed in this action by said defendants, especially noting the progress made in those areas covered by said Stipulation but not specifically referred to in this decree.
"All issues in this proceeding not disposed of by this interim decree are reserved. The Court will retain jurisdiction until the operation of the Pulaski County Jail meets the requirements of the Constitution of the United States. The Court expects and assumes that the operation of this facility will be in full compliance on or before September 1, 1971."
On February 14, 1972, plaintiffs filed a "Motion for Show Cause Order" asking the Court to order defendants to show cause why they should not be held in contempt for having "flagrantly defied the orders of this court . . . [in continuing] . . . to operate the Pulaski County Jail in an unconstitutional manner." A civil contempt hearing was held on August 31, 1972; the Court's Memorandum and Order followed on October 3, 1972. The text of that Memorandum and Order is quoted in full below:
"On February 14, 1972, plaintiffs filed a motion `to show cause why (defendants) should not be held in contempt' for failure to comply with the orders of this Court. Informal conferences were held July 26, 1972, and September 13, 1972, and a formal hearing on the motion was held August 31, 1972.
"Although various violations of the Court's prior orders were proved by plaintiffs, the Court, not without serious misgivings, will not at this time adjudge any of defendants to be in contempt. The Court set out in its June 2, 1971 Memorandum Opinion the minimum constitutional standards under which the Pulaski County Jail could continue to detain persons accused, but not convicted, of crimes. Although the defendants could not be ordered to maintain such standards, the Court did determine that, if the facility is to be operated at all for such purposes, it must meet those minimum standards.
"To remind defendants of the gravity of the issues the Court refers them to its June 2, 1971 opinion:
`With only insignificant exceptions, the Pulaski County jail is an institution used for the purpose of detaining persons who are awaiting trial. The inmates are either being detained because they cannot afford the fee for the bail bond set for themthe usual caseor because they have been accused of a capital or "non-bondable" offense. In all cases, such detainees are presumed innocent, in the eyes of the law, of the crime which they have been charged. Their actual guilt or innocence remains for future determination . . ..
`. . . It is clear that the conditions for pre-trial detention must not only be equal to, but superior to, those permitted for prisoners *341 serving sentences for the crimes they have committed against society.
`The only legitimate state purpose served by holding in jail those who are unable to make bond is to make certain that those detained are present when their cases are finally called for trial.'
"At the informal conference held on September 13, 1972, counsel for the defendants, John Forster, indicated that certain actions would be taken immediately by defendants to bring the facility into compliance in those areas where problems still exist. The Court's decision not to hold defendants in contempt is primarily a result of those representations, which the Court takes to have been made in good faith. Mr. Forster is directed to report within two months on the progress made in those areas discussed at that conference.
"Attorneys for plaintiffs have, since the first hearings in this lengthy proceeding, earnestly requested that the Court make an award of a reasonable attorney's fee in favor of plaintiffs and the class they represent. No action upon that request was taken because of what the Court viewed as an extremely affirmative good faith attitude on the part of defendants during the initial phases of the case. Since that time, however, it appears that defendants have become lax in the discharge of their duty to operate the county jail in accordance with minimum constitutional requirements, and, indeed, possibly indifferent to the manifold serious problems at hand. As a result, the attorneys for plaintiffs have been subjected to a barrage of complaints emanating from the jail and have spent much additional time investigating such matters and presenting them to this Court. The Court is therefore now awarding the sum of $1,000.00 as a partial attorney's fee for plaintiffs. This is far below what could fairly be called a `reasonable fee' for the services rendered. The Court is reserving its decision on an award of a more realistic fee pending future developments.
"The Court wishes to make it clear that it will be less hesitant in the future to adjudge defendants to be in contempt, particularly where the individual responsibility of a designated defendant is made apparent from the evidence. The role of each of the defendants has been more clearly defined as a result of the recent meetings and hearing. The Court will require strict compliance with existing and future orders.
"It is ordered that attorney for the defendants report to this Court on or before December 4, 1972, on the status of defendants' acts of compliance with the Court's orders and their independent good faith efforts to bring the operation of the jail up to minimum constitutional standards. It is further ordered that defendants pay to the attorneys for plaintiffs the sum of $1,000.00 as a partial attorney's fee for services rendered.
"The applications of both plaintiffs and defendants for modifications of the Court's prior orders will remain under submission until the Court receives and reviews the report of defendants' attorney referred to above. In the interim the Court will expect the defendants to comply with existing orders."
On August 8, 1972, plaintiffs filed a motion for amplification of, and defendants filed a motion for modification of, the Court's June 22, 1971 interim decree. Plaintiffs requested that the Court order defendants to provide detainees with shaving cream, razors and other necessary toilet articles, that no censorship of mail be permitted and that visiting hours be maximized. Defendants, on the other hand, requested that 18, instead of 20, staff persons be approved by the Court, that defendants be allowed to inspect outgoing mail of high risk detainees, that persons in cells 3, 4, 8 and 9 be excluded from the recreation *342 program unless the population of their cell exceeds 75 per cent of its designated capacity and that confinement of juvenile detainees with adults be allowed under certain circumstances. Plaintiffs filed, on November 15, 1972, a motion to tax the costs of Service of Garnishment in connection with collecting the $1,000.00 award of a partial attorney's fee and of acquiring a copy of the contempt hearing transcript. These three motions are presently pending, but will be disposed of in the Order entered pursuant to findings of fact and conclusions of law as set out herein.
Throughout the course of this litigation, the Court believed the February 24, 1971 stipulation would provide a basis for compromise and accommodation, giving optimum discretion to defendants over the ways and means of improving the jail facility while preserving the integrity of constitutional principals. Defendants have failed, however, to adhere to the letter and the spirit of their commitments and to the orders of this Court. On January 24, 1973 the Court received defendants' last report on conditions at the county jail, and defendants now take the position that the Court's existing orders have been complied with and that the facility and its present operation meet minimum federal constitutional standards.
Some progress has been made at the existing facility during the last three years. Use of the isolation cell or "the hole" was discontinued early in the suit. A major concern of the Court was the prevention of assaults and homosexual attacks by detainees on other detainees during extended periods of unobserved and unsupervised detention. With additional personnel defendants have been able to reduce significantly, if indeed not to eliminate altogether, those most serious problems. Telephone calls are no longer monitored. Previous court orders concerning mail inspection and censorship have been substantially complied with. Defendants have recently instituted an adequate medical examination and medical care program. The Court is convinced that defendants have made good faith efforts to rid the jail of rats, roaches and poisonous insects. The meals served detainees are adequate and have been since the commencement of this suit. Plaintiffs have not referred to fire fighting equipment since early in the suit, and it is the Court's impression that the defendants have acquired such equipment. Although the Court believes that present visitation policies probably do not violate minimum constitutional requirements, it nevertheless notes that present visitation privileges are minimal and could, by proper utilization of staff, be increased considerably. Visitation privileges are very important to most detainees. The reasonable extension of those privileges would, like the recreational program referred to below, improve morale, and give further recognition to the necessity of approaching as nearly as possible the goal of detention-without-punishment, dealing, as we are, with persons awaiting trial and presumptively innocent of crimes. After numerous evidentiary hearings the Court has concluded that the use of brutality in dealing with detainees is not a policy of the defendants or of the jail personnel. Indeed it is contrary to defendants' policy. Force has been used on occasions, but the Court finds that such force was used only in cases of necessity and as a last resort and, when used, within legal limits. This does not mean that the defendants may relax their vigil in this regard. It is their continuing duty to carefully advise and instruct all jail personnel on conditions in which force may be used and the manner of its use where legally justified. After almost three years, however, grave problems remain.

Exercise and Recreation Program
In a status report submitted April 7, 1971, defendants stated the following:
"Laborious moving operations have been in process on the fourth floor of the jail which, as of April 8, 1971, will be completely cleared. This constitutes a substantial beginning toward implementing exercise and recreational *343 facilities for the inmates. It is also a tangible indication of defendants' good faith efforts to comply with the stipulation."
Judge Mackey testified in a January 16, 1973 hearing that although recreation equipment[2] for use on the fourth floor had been requisitioned by the Sheriff's office, he had not ordered the items because the security risk was too great. He also testified that the county lacked the funds to purchase such equipment, but later receded from this position. The Court has previously stated that inadequate resources can never be an adequate justification for the state's depriving any person of his constitutional rights.[3] Moreover, the Court is convinced that the county has, or can readily obtain, the necessary resources not only to implement a reasonable recreational program but also to bring even this obsolete facility up to minimum constitutional standards and to comply with all previous orders of this Court. Given an adequate staff, which the Court has required in previous orders, defendants have no justifiable basis for denying detainees the benefits of a reasonable exercise and recreational program. This Court stated in its memorandum opinion of June 2, 1971, at 1192-1193 that:
". . . the overly strict and unreasonable controls on the physical movement of detainees and lack of the necessary space for exercise and other normal physical activities might render detention under such circumstances constitutionally inadequate.
"Here the defendants have cleared out the open areas on the fourth floor of the jail which, the Court finds, could be readily adapted for exercise and recreational programs. The defendants, however, have indicated that, with inadequate staff, they are concerned with the security problems incident to the movement of the prisoners, in small groups or otherwise, from the cells to the fourth floor recreation area and the return of such prisoners from the fourth floor to their cells. In view of the testimony of Mr. Wingfield of the Bureau of Prisons with respect to staff requirements and the decision of the Court, set forth below, on the personnel needed to meet constitutional requirements, the Court assumes that the defendants, upon compliance, will have the necessary personnel to move into an exercise and recreational program utilizing the open spaces on either the fourth or the third floor of the jail. It therefore further assumes that any unreasonable restrictions upon the physical movement and physical activity of the inmates will be removed as soon as the necessary trained personnel are on hand."
In that opinion the Court also described the conditions which made recreation programs so important:
"The average inmate spends most of his time sitting or lying upon his bunk. Indeed, inactivity, in miserable surroundings, was the principal feature of the detainees' existence as the situation existed when this proceeding was initiated."
Id., at 1189.
Not until the January 16, 1973 hearing was the Court informed that defendants believed the fourth floor area could not be used for exercise or recreation. *344 Defendants assert in their January 24, 1973 status report that:
". . . no physical rehabilitation will be undertaken with reference to the fourth floor of the Pulaski County Jail. It is estimated that the replacement of the windows would cost in excess of $10,000. The defendants direct the Court's attention to the fact that the windows as installed are encased in metal frames and that the hinges and locks on same have rusted and that most are broken. Thus, the frames would have to be removed and new ones replaced. It is further pointed out to the Court that a special type of reinforced shatterproof glass is required in the confinement facility and the cost of frames and glass to rehabilitate the fourth floor would be prohibitively expensive considering the fact that the projected completion date of the new confinement facility is December, 1973."
So, as of the date of this opinion there is still no recreation and exercise program for those detainees who might like to avail themselves of such a program. Since the implementation of such a program has always been tied to personnel and staffing factors by the defendants, it is important to deal further with those factors here.
Defendants have increased their paid jail staff from 14 to 18 members but have requested modification of the Court's previous decree. The Court's June 22, 1971 Interim Decree provided that:
". . . The defendants shall, on or before September 1, 1971, provide enough paid `free-world' personnel to enable them to assign at least one such staff member to each `cell' floor to continually patrol in the immediate area of each and every person detained in any of the cells in the Pulaski County Jail on a 24-hour-a-day basis. . . . Unless defendants can satisfy the Court, after application and hearing, that fewer paid personnel are needed to accomplish this objective the following will be required:
"A. Where prison population is above 75, assuming an approximate ratio of 65 male prisoners to 10 female prisoners, defendants will, not later than September 1, 1971, have a paid staff consisting of not less than 20 personnel, of which four shall be female matrons. By way of interim progress toward the satisfaction of this requirement, the Court requires an addition to the present staff of at least two paid personnel, of which at least one will be a female matron, on or before June 30, 1971; an addition of at least three paid personnel between June 30 and July 30, 1971, of which at least two will be female matrons; with full compliance by September 1, 1971.
"B. If the prison population is reduced to 75 or fewer detainees, assuming an approximate ratio of 65 males to 10 females, and if said population is maintained at or below this level, defendants will be required to have a total of 16 paid `free-world' personnel, of which four will be female matrons. Under this population condition, defendants, by way of interim progress, must hire at least two additional paid personnel by June 30, 1971, of which at least one will be a matron, and defendants will be in complete compliance not later than July 30, 1971."
The above decree was formulated to make it possible to have one paid "free-world" staff member on each "cell" floor at all times and to assure that defendants removed the overly strict and unreasonable controls on the physical movement of detainees.
Implicit in Judge Mackey's and Captain Allen's concern about "security problems" created by any exercise and *345 recreation program is an apparent belief that the Pulaski County Jail staff is still inadequate to support such a program. It therefore follows that a modification of the Court's previous staff requirement decree is not in order.[4] Indeed, in view of the defendants' latest testimony it is not clear that they would agree that the minimums of 20 and 16, depending upon population, would be adequate for such purposes. Defendants have not made a sufficient showing of any substantial security problem inherent in the use of an exercise and recreation program; nor have they made a good faith effort to even experiment with such programs.[5] The defendants are not in compliance with the Interim Decree and the Court is not inclined to modify it in the light of the circumstances.

Racial Segregation and Population Classification
The Court ordered defendants, on June 22, 1971, to:
". . . submit a plan for the racial integration of the Pulaski County Jail facilities not later than July 30, 1971, which plan shall set forth a schedule for the implementation thereof . . .".
and to:
". . . submit to the Court a plan for the classification of detainees, according to criteria which they deem appropriate, which will permit the appropriate segregation and handling of detainees and which may take into consideration such criteria as prior record, prior disciplinary problems, age, and the like."
Defendants reported to the Court on August 10, 1971, that the jail had been integrated and that defendants were attempting to group detainees "as nearly as possible as to age, crime committed, prior record and potential for violence." It developed subsequently, however, that the cells were again segregated and all attempts to devise a classification system were abandoned. Captain Allen testified in the January 16, 1973 hearing that the cells were segregated at the request of black prisoners. Defendants' January 24, 1973 report indicates that the cells are now integrated and that detainees are classified according to the offense charged.[6] While the Court recognizes that a rational classification system at the county jail would not serve as useful a purpose as a system devised for a larger facility having a variety of treatment, educational and rehabilitation programs and used to house persons convicted of crime, defendants nevertheless must make a reasonable effort to classify detainees along lines previously indicated by the Court. The present system allows the consideration of only one factor: the offense charged (of which, of course, the detainee is presumed innocent). The Court notes that Mr. Dwayne Basinger of the Federal Bureau of Prisons has been available to defendants for consultation and has offered to aid defendants in the development of a classification system. Clearly a more rational and useful classification program can be devised. And, clearly also, the system presently used is constitutionally suspect.

Rules and Regulations
In the February 24, 1971 stipulation defendants agreed to provide each incoming detainee with a printed copy of all rules and regulations regarding prisoner conduct and privileges. The Court additionally ordered defendants to read such rules and regulations to incoming detainees who could not read and to keep a copy of same posted in each cell at all times. The Court finds that *346 defendants have substantially complied with the posting requirement but that, contrary to the Court's orders, they have not consistently provided each incoming detainee with a copy of the rules and regulations. Nor have they consistently read and explained such rules where required. There is no justification for noncompliance. The defendants have referred to a "litter" problem, but the Court has made it clear that defendants' employees can take up the copies of such rules after they have served their purpose. Prior notice of jail rules is indispensable to a subsequent due process enforcement of those rules by the imposition of sanctions or even denial of privileges.

Mail
Mail was also a topic of plaintiffs' motion for modification of the Court's interim order. Plaintiffs requested that the Court forbid all censorship of outgoing mail. The Court has previously enunciated the standards and procedures to be used by defendants in the inspection of mail. No mail may be censored. No outgoing mail may be inspected unless: permission is granted by the sender; the sender has a prior record of escape; or the jail authorities have knowledge, or a reasonable basis to believe, that an escape is planned. Defendants may also apply to the appropriate court for wider permission to inspect outgoing mail under compelling circumstances not presently foreseen.
At the most recent evidentiary hearing, plaintiffs produced testimony that postage stamps were generally unavailable to detainees. Defendants could provide postage stamps and other material at actual cost with little inconvenience to the staff. Detention in the facility should not unreasonably impair plaintiffs' rights to communicate with the outside world. Limitations on access to the postal system, when coupled with severe limits on visitation and severe limits on telephone communication, does unreasonably impair plaintiffs' rights to communicate with the outside world.

Personal Hygiene
Defendants reported on August 10, 1971 that detainees ". . . are provided with laundry facilities for their present clothing as often as required. In this regard, arrangements have been made with the Arkansas Department of Corrections to purchase three uniforms for each detainee at the rate of $2.00 apiece, and this will be implemented as soon as funds are approved." It now appears that detainees are able to periodically send out clothing to be laundered, but those without a change of clothing must continue to launder their one set in wash-sinks in the cells. No uniforms have been purchased. It is obvious that improvements in this area must be made.
Also relevant to the personal hygiene of the detainees is plaintiffs' request that the Court modify its interim decree to order defendants to provide inmates with shaving cream, razors and other necessary toilet articles. Testimony at the hearings has indicated also that the supply of soap at the institution is inadequate. The Court will not prescribe specific implements and amounts to be made available to detainees, but the Court will require defendants to provide sufficient toilet articles to allow detainees to maintain a reasonable state of personal cleanliness. Within this duty is the requirement that defendants evolve some method by which detainees can periodically shave.

Ventilation and Cooling
Early in this litigation defendants purchased and initiated the use of five window fans in an attempt to remedy the very serious cooling, heating, and ventilation problems at the facility. The large sheets of plate metal bolted over some window bars remain, however, and the Court is not convinced that the present ventilation system is adequate for the extreme summer conditions.

General Condition of Facilities
The Court found, at the inception of this litigation, that the cell areas of the jail were ". . . dark, dirty, *347 very unsanitary . . . smelly and, overall, unhealthy and depressing places." Defendants, during the very early phase of this proceeding, did institute a general cleaning and painting program which substantially improved the condition of the jail facility. Defendants, however, have allowed the jail to again deteriorate greatly during the pendency of this suit and the Court finds that, on the evidence submitted during the last hearings, the cell areas of the jail are once again dark, dirty and unsanitary and, overall, unhealthy and depressing places. The plumbing is completely inadequate. Moreover, defendants have not maintained and repaired even this inadequate system to its maximum potential. The results are obvious from an examination of the photographs received in evidence at a recent hearing. Although detainees may not be forced to work, they should be given the opportunity and equipment to sweep and clean their cells more than once a day. The services of those prisoners actually convicted of crime and serving sentences as "trustees" may certainly be utilized in the effort to keep the facility in a sanitary condition.
The Court has not and could not set forth specific constitutional standards applicable to all jail-type detention facilities. We are not here dealing with absolutes. The existing jail facility must be judged in light of its present programs and its own peculiarities.[7]
On the basis of the above findings of fact the Court must conclude that the defendants have failed to comply with a substantial number of the Court's previous orders and as a result the Pulaski County Jail and its operation still do not meet minimum federal constitutional standards. The three defendants, although in different areas and in varying degrees, are responsible for the present physical condition and the present operational policies existent at the Pulaski County Jail. All three defendants must therefore be adjudged to be in contempt of this Court's prior orders.
The Court will therefore impose token fines of $250.00 on Judge B. Frank Mackey; $250.00 on Sheriff Monroe Love; and $50.00 on Captain O. A. Allen. The Court will suspend execution of these fines pending complete compliance by the defendants with the Court's prior orders and the order to be entered by this Court, pursuant to this opinion. Such compliance should be completed within 60 days of the filing of this memorandum. If defendants have not so complied with all orders of this Court within said 60 days, but nevertheless continue to operate the jail for the detention of persons charged with, but not convicted of, crimes, the Court will impose additional, realistic fines on the responsible defendant, or defendants, for each day of noncompliance beyond that date. Nothing herein shall be construed as ordering or requiring defendants to continue the operation of the Pulaski County Jail. If, however, they choose to continue said operation, it must be brought fully to compliance as indicated.
The Court will award the sum of $1,500.00 as a further partial attorney's fee for plaintiffs. The Court will also award plaintiffs their costs.
All previous findings of fact and conclusions of law not varied or superseded hereby, or by previous orders, are hereby adopted and ratified.

FINAL DECREE
In conformity with the Court's findings of fact and conclusions of law set forth and referred to in its Memorandum Opinion filed this day, it is hereby ordered, adjudged, and decreed that the Pulaski County Jail facility and its operation must meet the following requirements and standards by June 25, 1973, *348 or defendants shall cease and terminate the operation of said facility.
1. Defendants shall not censor any mail sent or received by detainees. No outgoing mail shall be inspected unless permission is granted by the sender; the sender has a prior record of escape; or the jail authorities have knowledge, or a reasonable basis to believe, that an escape is being planned. Defendants shall provide detainees with postage stamps, envelopes, and paper at actual cost.
2. Defendants shall develop and implement a reasonable exercise and recreation program. Although the Court is not directing defendants to rehabilitate any specific area of the jail for this purpose, defendants must do whatever is necessary to make some area adequate for the purpose decreed.
3. The Court ratifies and adopts item 9 of its Interim Decree of June 22, 1971, except that June 25, 1973 is substituted for July 30, 1971.
4. Defendants shall inform each incoming detainee of all rules and regulations regarding prisoner conduct and privileges. A copy of said rules shall also remain posted in, or within reading distance of, each cell at all times.
5. Defendants shall provide detainees with necessary shaving and toilet articles.
6. Defendants shall provide each detainee not having a change of clothing with at least one uniform or other change of clothing and shall launder detainee's clothing or jail garb at least once a week.
7. Defendants shall make any improvements necessary to provide and utilize an adequate, healthy cooling and ventilation system for the Pulaski County Jail. If it is necessary to remove the steel plates from cell windows to reach the ordered result, this must be done.
8. Defendants shall repair and keep in operable and sanitary condition necessary plumbing fixtures and bathing and toilet facilities. Defendants shall paint, clean and keep the holding areas of the Pulaski County Jail in a condition that meets normal, non-penal, institutional hygienic standards. Defendants should consult with the Pulaski County health authorities for assistance and advice in meeting their obligations under this and other sections of this order relating directly or indirectly to health problems.
All motions for modification or amplification, unless referred to herein, are denied.
All previous orders of this Court not varied or superseded hereby are adopted and ratified.
It is further ordered that a fine of $250.00 be imposed upon Judge B. Frank Mackey; that a fine of $250.00 be imposed upon Sheriff Monroe Love; and that a fine of $50.00 be imposed upon Captain O. A. Allen. All fines are suspended on the condition that defendants are either in compliance with all of the Court's orders by June 25, 1973, or cease and terminate the operation of the Pulaski County Jail for the detention of persons awaiting trial by that date.
Defendants shall pay to attorneys for plaintiffs the sum of $1,500.00 as an additional partial attorney's fee for services rendered. Plaintiffs' November 15, 1972 "Motion to Tax Costs" in the amount of $30.04 is granted. Plaintiffs' attorneys shall file with the Court an affidavit itemizing court costs incurred during the pendency of this litigation. Such other costs as the Court finds reasonable will be assessed against defendants.
NOTES
[1]  Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971).
[2]  The Court has never ordered defendants to purchase any specific recreational equipment. The Court's concern is that defendants initiate some kind of exercise and recreational program. The details of such a program have been left to the discretion of defendants in the hope that they would initiate a reasonable program. All detainees need not be given recreational opportunities at the same time. Defendants may wish to proceed with small groups. Although a previous order of this Court may have implied that each detainee should be given this opportunity every day, the Court does not require this. The goal is a reasonable program, conceived and implemented in good faith.
[3]  328 F.Supp., at 1194.
[4]  On August 8, 1972 defendants moved for modification of the Court's June 22, 1971 interim decree to decrease the number of "free-world" staff members required by the Court.
[5]  Captain Allen testified that detainees were taken to the fourth floor for exercise for a few days but that this was abandoned because of the detainees' lack of interest.
[6]  One exception: federal prisoners are simply housed separately, as one group, regardless of the charges against them.
[7]  For example, it is necessary that defendants develop a recreation and exercise program at the present facility in order for it to meet minimum constitutional standards. Such a program might not be necessary in other facilities with different physical plants and different programs.


561 N.W.2d 583 (1997)
5 Neb. App. 544
Neal F. NORRIS, Appellant,
v.
Mary Jane HATHAWAY, Appellee.
No. A-95-1177.
Court of Appeals of Nebraska.
March 11, 1997.
*584 David Riley, Omaha, for appellant.
Judy K. Hoffman, Omaha, for appellee.
MILLER-LERMAN, C.J., and IRWIN and SIEVERS, JJ.
IRWIN, Judge.

INTRODUCTION
Neal F. Norris appeals the judgment of the district court for Douglas County dismissing his petition with prejudice following a bench trial. Regarding Norris' action for defamation, the district court generally concluded that Mary Jane Hathaway's statements were not defamatory per se and that Norris had failed to prove his damages by a preponderance of the evidence. For the reasons stated below, we reverse, and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND
The facts in the case before us are largely undisputed. Hathaway and Norris were both employed by the U.S. Postal Service. They worked at the Omaha plant during the same shift. In 1993, Norris was employed as a review clerk. His duties included verifying problems in various operations. Hathaway was assigned to work at a "flat sorter" machine on the first floor of the plant, and she was also a relief expediter for the first floor.
On January 19, 1993, at approximately 7 p.m., Norris was contacted by another postal employee, Dennis Wynn, to verify the labels being used on the flat sorter. Hathaway was responsible for proper labeling on that flat sorter. Norris verified that an improper color code was being used on the labels. Norris informed Hathaway's supervisor of the problem, who then spoke with Hathaway.
During a break that evening, Norris overheard Charles Prestito, who was Hathaway's boyfriend and also a postal employee, speaking to Wynn in a threatening manner. Norris reported this conduct to Prestito's supervisor and the manager of operations. On January 20 at approximately 3 p.m., Prestito was suspended from work.
On January 20, Hathaway complained to John Wacha regarding Norris. Wacha was Norris' supervisor and had authority to discipline him. In the postal service, discipline for sexual harassment can include removal from employment. According to Wacha, Hathaway was very emotional and enraged and was speaking in a shrill and loud voice. She accused Norris of sexually harassing her and grabbing her by the buttocks. She did not provide an exact time or place for the incident.
Wacha conducted an investigation of Hathaway's allegations as required. He spoke with Norris on January 21, and Norris denied Hathaway's accusations. At some point, Wacha determined Hathaway's allegations to be false.
On January 21, Hathaway sent a letter to Mike Matuzek, the plant manager, in which she alleged that Norris had fondled her and that he had sexually abused her. Hathaway testified that she also told some of her coworkers that Norris had grabbed her bottom and had hit her bottom with a clipboard.
On approximately February 8, Hathaway again complained to Wacha about Norris. *585 She alleged that Norris and Wynn had sexually harassed her, that they were laughing and sneering at her, and that Norris had previously "grabbed" her "on the butt." She characterized their conduct as harassment. After an investigation, Wacha again found her allegations to be untrue.
Hathaway also complained to the equal employment opportunity office of the U.S. Postal Service regarding Norris. In March 1993, she filed a formal complaint with the office against him.
In July and August 1993, Norris' counsel sent Hathaway two retraction demand letters on Norris' behalf pursuant to Neb.Rev.Stat. § 25-840.01 (Reissue 1995). On October 1, 1993, Norris filed a petition stating causes of action for defamation and false light. In an amended answer, Hathaway alleged truth as an affirmative defense.
A bench trial was held September 26, 1995. In addition to the evidence recited above, Norris testified at trial that he had never been disciplined or reassigned due to Hathaway's allegations and that he was currently receiving the same rate of pay as before her allegations. However, he indicated that during the investigation, which lasted 2 years, he was concerned he would be fired. Norris also felt that his reputation and name had been hurt by Hathaway's allegations. He further testified that his costs of litigation were approximately $10,000 to $12,000.
After hearing the evidence, the district court found that Hathaway's statements were not "slander per se." The court expressly stated that it was not making a finding as to the truth or falsity of Hathaway's statements. The court dismissed Norris' petition with prejudice for failure to prove his damages by a preponderance of the evidence.
Norris thereafter filed a motion for new trial and a motion to vacate. Both motions were overruled. Norris timely filed the present appeal.

ASSIGNMENTS OF ERROR
For his assigned errors, Norris claims that the district court erred as follows: (1) in finding that Hathaway's statements were not defamatory per se, (2) in requiring him to prove damages by a preponderance of the evidence as an element of the action, (3) in finding that he had failed to prove his case and damages, (4) in denying his posttrial motions to vacate and for new trial, (5) in declining to make any finding as to the truth or falsity of Hathaway's statements, and (6) in failing to make any finding on his action for false light.
We note that Norris does not discuss his sixth assigned error. An appellate court will not consider assignments of error which are not discussed in the brief. Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996).

STANDARD OF REVIEW
Whether a communication is defamatory per se is a threshold question of law for the court. K Corporation v. Stewart, 247 Neb. 290, 526 N.W.2d 429 (1995); Wheeler v. Nebraska State Bar Assn., 244 Neb. 786, 508 N.W.2d 917 (1993), cert. denied 511 U.S. 1084, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994).
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Baltensperger v. Wellensiek, 250 Neb. 938, 554 N.W.2d 137 (1996); Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996).

ANALYSIS
A claim of defamation requires:
(1) a false and defamatory statement concerning the plaintiff;
(2) an unprivileged publication to a third party;
(3) fault amounting to at least negligence on the part of the publisher; and
(4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
50 Am.Jur.2d Libel and Slander § 21 (1995). Accord Restatement (Second) of Torts § 558 (1977). There are two types of defamation: Words may be actionable per se, that is, in themselves, or they may be actionable per quod, that is, only on allegation and proof of the defamatory meaning of the words used *586 and of special damages. K Corporation, supra. See Matheson v. Stork, 239 Neb. 547, 477 N.W.2d 156 (1991).
We address whether the district court erred in determining that Hathaway's statements were not defamatory per se. We note that the substance of Hathaway's statements is generally undisputed. She stated to Norris' supervisors and coworkers orally and in writing that Norris had sexually harassed her, sexually abused her, fondled her, grabbed her buttocks, and hit her buttocks with a clipboard.
In Matheson, the Nebraska Supreme Court held:
Spoken or written words are slanderous or libelous per se only if they falsely impute the commission of a crime involving moral turpitude, an infectious disease, or unfitness to perform the duties of an office or employment, or if they prejudice one in his or her profession or trade or tend to disinherit one.... In determining whether a communication is libelous or slanderous per se, the court must construe the questioned language "in its ordinary and popular sense." ... Further, the circumstances under which the publication of an allegedly defamatory communication was made, the character of the audience and its relationship to the subject of the publication, and the effect the publication may reasonably have had upon such audience must be taken into consideration.
239 Neb. at 553, 477 N.W.2d at 160-61.
In Hruby v. Kalina, 228 Neb. 713, 715, 424 N.W.2d 130, 132 (1988), the court cited the Restatement (Second) of Torts § 571 (1977), stating that "`imputation of a crime presents slander per se if the crime, in the place of publication, would be "(a) punishable by imprisonment in a state or federal institution, or (b) regarded by public opinion as involving moral turpitude."'" Accord Hennis v. O'Connor, 223 Neb. 112, 388 N.W.2d 470 (1986).
In the case before us, Hathaway's statement that Norris grabbed her buttocks clearly imputes to Norris the crime of third degree sexual assault. See, Neb.Rev.Stat. § 28-320 (Reissue 1989) (defining third degree sexual assault as sexual contact by force, threat of force, coercion, or deception that does not cause serious personal injury to victim); Neb.Rev.Stat. § 28-318(5) (Reissue 1989) (defining sexual contact as intentional touching of victim's sexual or intimate parts or victim's clothing covering same for purpose of sexual arousal or gratification of either party); § 28-318(2) (defining intimate parts to include buttocks). The crime of third degree sexual assault, a Class I misdemeanor, is punishable by imprisonment. Neb.Rev.Stat. § 28-106 (Reissue 1995). It is also a crime of moral turpitude. See 58 C.J.S. Morals 1205-06 (1948).
A similar result was reached in Goldstein v. Kinney Shoe Corp., 931 F.Supp. 595 (N.D.Ill.1996). In Goldstein, the federal district court held that allegations in a complaint that two males had forced a woman to engage in sexual acts, exposed themselves to the woman, and touched and grabbed her breasts and buttocks without consent, and that one of the men had molested underage girls sufficiently pled an action of defamation per se in that the statements imputed that the defendants had committed crimes.
We conclude that Hathaway's statement that Norris grabbed Hathaway's buttocks imputes to Norris a crime of moral turpitude punishable by imprisonment. We note that Hathaway made this statement in the workplace on more than one occasion to Norris' supervisors, who had the authority to terminate his employment, and also to other coworkers. For the reasons stated above, we conclude that the district court erred as a matter of law in concluding that Hathaway's statements, which are undisputed, are not defamatory per se if found to be false. See Matheson, supra. The district court also abused its discretion in failing to grant Norris' motion for new trial and motion to vacate on this basis. See, Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996) (holding that decision regarding motion for new trial will be upheld absent abuse of discretion); Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995) (holding that decision on motion to vacate will not be reversed absent abuse of discretion).
*587 The district court by its own comments at dismissal specifically stated that it was making no finding as to the truth or falsity of Hathaway's statements. Therefore, the case is remanded to the district court for a determination of whether Hathaway's statements were true or false. If they are found to be false, the question of damages must be considered anew in light of the case law regarding damages for false statements which are defamatory per se. See McCune v. Neitzel, 235 Neb. 754, 457 N.W.2d 803 (1990).
Given our disposition of Norris' first assigned error, we need not address the remaining assigned errors.
We reverse, and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


                                                                                ACCEPTED
                                                                             03-14-00629-CV
                                                                                4797510
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                         4/7/2015 4:56:20 PM
                                                                           JEFFREY D. KYLE
                                                                                CLERK
       ____________________________________________________

                          NO. 03-14-00629-CV         FILED IN
                                              3rd COURT OF APPEALS
                                                  AUSTIN, TEXAS
                    IN THE COURT OF APPEALS   4/7/2015 4:56:20 PM
                FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                            AT AUSTIN                 Clerk
  ______________________________________________________________

LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
and MICHAEL L. WILLIAMS, Commissioner of Education, State of Texas
                         Appellants

                                   v.

                        JORGE VAZQUEZ,
                             Appellee
 _______________________________________________________________

  On Appeal from the 419th Judicial District Court, Travis County, Texas
                   Trial Court No. D-1-GN-13-003654
               Honorable Scott Jenkins, Judge Presiding
__________________________________________________________________
                   REPLY BRIEF OF APPELLANT
 LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

       WALSH, ANDERSON, GALLEGOS, GREEN & TREVIÑO,P.C.
                          STACY T. CASTILLO
                          State Bar No. 00796322
                          D. CRAIG WOOD
                          State Bar No. 21888700
                          ELIZABETH G. NEALLY
                          State Bar No. 14840400
                          100 N.E. Loop 410, #900
                          San Antonio, Texas 78216
                          Phone (210) 979-6633; Fax (210)979-7024

                                 ATTORNEYS FOR LOS FRESNOS CISD

  APPELLANT LOS FRESNOS CISD REQUESTS ORAL ARGUMENT
                                        TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................i

INDEX OF AUTHORITIES11

ARGUMENT .............................................................................................................3

    A.   Not Administrative Activism...........................................................................3
    B.   No Right to Due Process in Non-Renewal Hearings .....................................5
    C.   Sister State Courts Agree.................................................................................6
    D.   Even if Due Process was Required, Vasquez Received Due Process.............7

CONCLUSION AND PRAYER ..............................................................................8

CERTIFICATE OF SERVICE ................................................................................10

CERTIFICATE OF COMPLIANCE.......................................................................11

                                                           i
                                         INDEX OF AUTHORITIES

Cases
Cleveland Bd. of Educ. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494
  (1985)......................................................................................................................7
Demming v. Housing & Redevelopment Auth., 66 F.3d 950 (8th Cir.1995) ..............7
Dews v. Tyler ISD, Docket No. 053-RI-0508 (Comm'r Educ. 2008)....................5, 6
Dodd v. Meno, 870 S.W.2d 4 (Tex.1994)..................................................................4
Dove v. Allen County Educational Service Center Governing Board, 118 Ohio
  App.3d 102, 691 N.E.2d 1127 (1997) ....................................................................6
Flath v. Garrison Public School District, No. 51, 82 F.3d 244 (8th Cir. 1996).........7
Satterfield v. Edenton-Chowan Board of Education, 530 F.2d 567 (1975) ..............7
Spring Indep. Sch. Dist. v. Dillon, 683 S.W.2d 832 (Tex.App.—Austin 1984, no
  writ).........................................................................................................................5
Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26 (Tex. App. – Austin 1999, no
writ) ........................................................................................................................3, 5
TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) ..................4
Wilson v. Board of Education of Fort Worth Indep. Sch. Dist., 511 S.W.2d 551,
  (Tex. App. – Fort Worth, 1974, writ ref’d n.r.e ) ...................................................5

Statutes
EDUCATION CODE, Section 7.002...............................................................................3
STATE BOARD OF EDUCATION § 11.13(a) (b) .............................................................4
STATE BOARD OF EDUCATION § 11.25 .......................................................................4
STATE BOARD OF EDUCATION § 11.52(1)...................................................................4
TEX. EDUC. CODE §21.204 (e);...................................................................................3
Texas Education Code Section 21.256(d)..................................................................6

                                                                ii
         ____________________________________________________

                               NO. 03-14-00629-CV

                       IN THE COURT OF APPEALS
                   FOR THE THIRD DISTRICT OF TEXAS
                               AT AUSTIN

  _____________________________________________________________
 LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT
  and Michael L. WILLIAMS, Commissioner of Education, State of Texas
                            Appellants

                                          v.

                           Jorge VAZQUEZ,
                                Appellee
   ___________________________________________________________
   On Appeal from the 419 Judicial District Court, Travis County, Texas
                   Trial Court No. D-1-GN-13-003654
                Honorable Scott Jenkins, Judge Presiding
  _____________________________________________________________
                   REPLY BRIEF OF APPELLANT
 LOS FRESNOS CONSOLIDATED INDEPENDENT SCHOOL DISTRICT

To the Honorable Justices of the Third Court of Appeals:

      Appellant Los Fresnos Consolidated Independent School District (“Los

Fresnos CISD,” “LFCISD” or “the District,”) files its Reply Brief in this appeal.

The District points the Court to its initial Brief of Appellant for its Identity of the

Parties and Counsel, Statement of the Case, Statement on Oral Argument, Issues

Presented on Appeal, Statement of Facts, Summary of the Argument, and

                                        Page 1
Argument.    This Reply Brief is to direct the Court’s attention to additional

authority supporting the Brief of Appellant. As set out below, this Court should

reverse the trial court’s order and affirm the Commissioner’s decision, upholding

Vazquez’ nonrenewal.

                                     Page 2
                                ARGUMENT

A.   Not Administrative Activism

           In his Response Brief, Appellee, Jorge Vasquez, Jr., accuses the

     Commissioner of Education of exercising “administrative activism,” which

     he describes as happening when an executive branch decides to make new

     law, as opposed to simply administering the laws enacted by the legislature.

     Appellee blindly states that the Commissioner changed existing law.

     Clearly, however, the law relied on by District, the rulings of the

     Commissioner in prior cases, was not law applied only to the instant case.

     Certainly the Stratton case relied upon by the District in conducting its

     nonrenewal hearing of Vasquez has been in existence for more than a

     decade. See TEX. EDUC. CODE §21.204 (e); Stratton v. Austin Indep. Sch.

     Dist., 8 S.W.3d 26, 29-30 (Tex. App. – Austin 1999, no writ).

           In the Education Code, Section 7.002, the Commissioner of Education

     is charged with carrying out the educational functions specifically delegated

     under 7.021, 7.055 or another provision of this code. TEX. EDUC. CODE

     §7.002.   The Commissioner’s powers include carrying out the duties

     imposed on the Commissioner by the board or the legislature.

                                     Page 3
      The Commissioner of Education, is charged with having the following

duties among others:

      a.     The general duty of executing the school laws and the rules and

regulations of the State Board of Education (§ 11.25).

      b.     The power to interpret the rules and regulations of the State

Board of Education, his opinions in that regard being “binding for

observance on all officers and teachers.” (§ 11.52(1)).

      c.     The performance of adjudicative functions, together with the

State Board of Education, in deciding appeals from local school authorities

(§ 11.13(a), (b)).

      Texas courts have held that the Commissioner of Education’s

interpretation of provisions in the Education Code are to be upheld unless

the interpretation is “plainly erroneous or inconsistent with the language of

the statute, regulation, or rule.”   See, TGS-NOPEC Geophysical Co. v.

Combs, 340 S.W.3d 432 (Tex. 2011).

      Courts have held that when the Commissioner interprets statutes, his

opinion merits serious consideration if it is reasonable and does not

contradict the plain language of the statute. Dodd v. Meno, 870 S.W.2d 4, 7

(Tex.1994); Spring Indep. Sch. Dist. v. Dillon, 683 S.W.2d 832, 841

                                Page 4
      (Tex.App.—Austin 1984, no writ).

B.    No Right to Due Process in Non-renewal Hearings

      Appellee wrongfully asserts that “the present case is the first instance, since

the Term Contract Nonrenewal Act was enacted in 1981 in which the

Commissioner has announced that hearsay can serve as substantial evidence.” The

cases relied on by the District in both the nonrenewal hearing as well as during the

trial and in Appellant’s brief clearly dispute this statement. Since at least 1999, in

Stratton v. Austin I.S.D., courts have upheld that there is no right to due process

and therefore no right to the Rules of Evidence in a nonrenewal hearing. While

Stratton did not directly address the issue of hearsay, it did address the nonrenewal

hearing and the issues relating to Rules of Evidence, which includes rules

pertaining to hearsay. See, Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29-30

(Tex. App. – Austin 1999, no writ) and Wilson v. Board of Education of Fort

Worth Indep. Sch. Dist., 511 S.W.2d 551, 552 (Tex. App. – Fort Worth, 1974, writ

ref’d n.r.e ). Further, this is not a case of first impression, since the Commissioner

has been consistently holding that nonrenewal hearings are not bound by hearsay

since 2008. In Dews v. Tyler ISD, on appeal to the Commissioner, the petitioner

argued that the hearing exhibits were improperly admitted as evidence. See, Dews

v. Tyler ISD, Docket No. 053-R1-0508 (Comm’r Educ. 2008). The Commissioner

                                       Page 5
determined that if the case had been heard before a certified hearing examiner, then

the Texas Rules of Evidence would have applied to the hearing pursuant to Texas

Education Code Section 21.256(d). Id.

C.    Sister State Courts Agree

      A Court of Appeals in Ohio upheld a teacher’s non-renewal over her

objection that the School Board had considered hearsay evidence and had

considered an evaluation of her duties even though the evaluator was not present to

testify. Dove v. Allen County Educational Service Center Governing Board, 118

Ohio App.3d 102, 691 N.E.2d 1127 (1997). The Court of Appeals concluded that,

as in Texas, the Rules of Evidence were not meant to govern administrative

proceedings by a school board. 118 Ohio App.3d at 107; 691 N.E.2d at 1131. The

Court of Appeals noted, “Thus, the board was free to consider all the testimony

presented as long as “the discretion to consider hearsay evidence [was not]

exercised in an arbitrary manner.” Id. The Court of Appeals went on to note that

the teacher was free to present evidence and enter her own exhibits. Accordingly,

“she could have called the evaluators herself if she really wanted them there.” 118

Ohio App.3d at 108; 691 N.E.2d at 1131.

                                        Page 6
D.    Even if Due Process was Required, Vasquez Received Due Process

      A teacher in North Dakota appealed to the Eighth Circuit Court of Appeals

complaining that her nonrenewal was based upon hearsay evidence only and that

she was denied the opportunity to cross-examine witnesses. Flath v. Garrison

Public School District No. 51, 82 F.3d 244 (8th Cir. 1996). The Eighth Circuit

considered these complaints and rejected them. The Court held that, if any process

was due, it was satisfied. The Court noted:

      “To satisfy pretermination due process, a public employee is entitled to
      notice of the charges, an explanation of the evidence, and an opportunity to
      be heard. Cleveland Bd. of Educ. Loudermill, 470 U.S. 532, 546, 105 S.Ct.
      1487, 1495, 84 L.Ed.2d 494 (1985). Generally, something less than a formal
      adversarial hearing is required. Demming v. Housing & Redevelopment
      Auth., 66 F.3d 950, 953 (8th Cir.1995). Rather, the purpose of the
      pretermination hearing is to ensure that “ ‘there are reasonable grounds to
      believe that the charges against the employee are true and support the
      proposed action.’ ” Id. (quoting Loudermill, 470 U.S. at 546, 105 S.Ct.
      at 1495).”

      The Eighth Circuit concluded the Teacher received notice of the

contemplated nonrenewal and an explanation of the charges against her. She had

an opportunity to respond to the charges at the nonrenewal hearing. She was thus

afforded all the process she was due. Id, at 247.

             Likewise, the Fourth Circuit Court of Appeals concluded that the

consideration of hearsay testimony in a hearing before a school board was not

                                       Page 7
sufficient to generate a federal claim of denial of due process. Satterfield v.

Edenton-Chowan Board of Education, 530 F.2d 567 (1975). The Fourth Court of

Appeals noted that, the fact that there were complaints earlier called to the

plaintiff’s attention would be evidence of dissatisfaction with his work as a teacher.

Id., at 575. The Court stated:

      “Although hearsay reports . . . are inadmissible in a court of law, I certainly
      do not hold that they are inadmissable in administrative hearings . . ., for
      such hearings need not conform to the standards of judicial or quasi-judicial
      trials, and flexibility and informality should often characterize them.
      Moreover it is possible that even reports of unnamed observers may by
      referring to a specific occasion allow the teacher an adequate opportunity to
      explain her conduct on that occasion.”

      Id.

                         CONCLUSION AND PRAYER

      This Court must reverse the trial court’s judgment and affirm the

Commissioner’s decision, upholding the nonrenewal decision.

      WHEREFORE, PREMISES CONSIDERED, Appellant Los Fresnos

Consolidated Independent School District prays that this Court reverse the trial

court’s Order and affirm the Commissioner’s decision. Appellant requests that the

Court grant all such other and further relief, special or general, at law or in equity,

to which Appellant shows itself justly entitled.

                                        Page 8
    Respectfully submitted,

WALSH, ANDERSON, GALLEGOS,
   GREEN & TREVIÑO, P.C.
   STACY T. CASTILLO
   State Bar No. 00796322
   D. CRAIG WOOD
   State Bar No. 21888700
   ELIZABETH G. NEALLY
   State Bar No. 14840400
   100 N.E. Loop 410, #900
   San Antonio, Texas 78216
   (210) 979-6633
   (210)979-7024 (telecopier)

    /s/ D. Craig Wood
    D. CRAIG WOOD
    State Bar No. 21888700

    ATTORNEYS FOR APPELLANT
    LOS FRESNOS CISD

    Page 9
                         CERTIFICATE OF SERVICE

      I hereby certify that on this 7th day of April 2015, a true and correct copy of

the above and foregoing Appellant Los Fresnos Consolidated Independent School

district’s Reply Brief was electronically filed with the Clerk of the Court using

CM/ECF system, and notification of such filing will be electronically sent to:

Mark W. Robinett
Brim, Arnett, Robinett & Conners, P.C.
2525 Wallingwood Drive, Building 14
Austin, TX 78746
mrobinett@brimarnett.com

Jennifer Hopgood
Nichole Bunker-Henderson
Assistant Attorneys General
Administrative Law Division
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Jennifer.Hopgood@texasattorneygeneral.gov
Nichole.Bunker-Henderson@texasattorneygeneral.gov

                                             /s/ D. Craig Wood
                                             D. CRAIG WOOD

                                      Page 10
                            RULE 9.4 (i) Certification

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that the

number of words in this brief, excluding those matters listed in Rule 9.4 (i)(1), is

1,270.

                                              /s/ D. Craig Wood
                                              D. CRAIG WOOD

                                       Page 11