The ETS report, recognizing that the STAAR assessments for grades 3, 4 and 5 were grossly over the legal limits, provided the TEA with analysis and initial recommendations on how to bring the STAAR into compliance. That analysis includes warnings that shortening some of the assessments while maintaining the same content blueprint might lead to questionable reliability. The report goes on to provide comparisons to other state tests that allow significantly less time per question on comparable standardized tests.
On May 6, 2016, Educational Testing Service's Texas STAAR Psychometric Services Team sent a memorandum titled A Report on Testing Time Collected During March 2016 Test Administration to Gloria Zyskowski, the Student Assessment Division Director at the TEA. From page one of the memo: "These percentages do not support the [HB-743] requirement (i.e., 85% of students completing the test in 2 hours) for the lower grades."
Mr. Morath’s excuses were never-the-less expected as a legal tactic to draw out the litigation—increasing the time and expense necessary for parents to get relief from a judge. However, what does come as a shock is the extent to which Mr. Morath, the TEA, its vendor Educational Testing Service (ETS) and the Attorney General are working together to keep records and communications about the STAAR hidden from public view. 
Commissioner Morath and the agency make the argument that parents “lack standing” and do not have the right to sue the Texas Education Agency in court. They claim parents must complain to the agency itself if they believe the agency broke the law. This means the TEA not only chose to ignore the Texas Legislature but now deems itself beyond the reach of the Texas judiciary.
You owe the people of Texas a transparent accounting of these problems as well as the reasoning behind changes in policy. If you cannot answer these questions, you must throw out ALL the scores, order them expunged from student records, and assure they are not used for any decision-making. Anywhere. Period. This is the only way the public can be sure that you have kept your promise that no negative consequences will come from invalid scores.
“Despite knowing that the assessments did not comply with statute, and despite a lead time of over nine months to comply, the TEA failed and refused to develop assessments that comply with the statute. As a result, approximately 2,000,000 Texas students were administered illegal assessments. The results of these illegal assessments are now being used to enact punitive measures against students, teachers and schools across the state. The Plaintiffs sue for declaratory and injunctive relief to ameliorate the ongoing harm.”