Part 2. TEXAS EDUCATION AGENCY
Chapter 157. HEARINGS AND APPEALS
Subchapter D. INDEPENDENT HEARING EXAMINERS
The State Board of Education (SBOE) proposes an amendment to §157.41, concerning independent hearing examiners. The amended section as proposed establishes certification criteria for independent hearing examiners. The proposed amendment would require that independent hearing examiners submit fingerprints for the purpose of obtaining criminal history reports and would update the continuing education requirements.
Section 157.41 specifies certification criteria such as license required, experience, continuing education, and annual recertification for independent hearing examiners. The examiners preside over due process hearings involving terminations, suspensions without pay, and nonrenewal of term employment contracts. The examiners also develop findings of fact and conclusions of law, which are referred to the school district board of trustees. The board of trustees reviews the recommendation and votes on it.
The enactment of Senate Bill 9, 80th Texas Legislature, 2007, establishes a program for obtaining the criminal histories of individuals who come into close proximity to students. The proposed amendment to 19 TAC §157.41, Certification Criteria for Independent Hearing Examiners, is proposed in subsection (c) to notify independent hearing examiners that they will be required to provide criminal history in a manner specified by the commissioner of education. This would assure that independent hearing examiners do not have inappropriate criminal histories. Criminal histories are now most often obtained through the submission of fingerprints. In addition, the proposed amendment would specify the subject areas in subsection (f) that satisfy the continuing legal education requirement in civil trial advocacy to ensure that the examiners receive training in evidence, civil procedure, and legal writing. This responds to concerns expressed about the skills of some independent hearing examiners in conducting hearings.
David Anderson, general counsel, has determined that, for the first five-year period the proposed amendment is in effect, there will be fiscal implications for state government as a result of enforcing or administering the amendment. The Texas Department of Public Safety will collect, through a vendor, approximately $3,500 from an estimated 70 independent hearing examiners who will each pay approximately $50 to be fingerprinted. There will be no fiscal implications for local government.
Mr. Anderson has determined that, for each year of the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the amendment would be ensuring that certified hearing examiners meet minimum experience, licensing, educational, and ethical standards. There is an anticipated economic cost to persons who are required to comply with the proposed amendment. Independent hearing examiners will pay the cost of being fingerprinted to the vendor of the Texas Department of Public Safety. The one-time cost is anticipated to be approximately $50 per examiner.
There is no economic cost to small businesses. There will be an effect on microbusinesses.
Economic Impact Statement. The proposed rule action will affect between 1-100 microbusinesses (businesses with fewer than 20 employees). Independent hearing examiners are considered microbusinesses. The projected economic impact will be for compliance costs, which is payment of the fingerprinting fee. Microbusinesses will be impacted more than small businesses.
Regulatory Flexibility Analysis. The TEA exercises the exception to considering alternatives to the proposed rule action because minimizing the economic impact could cause the health, safety, and welfare of students to not be protected.
Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Policy Coordination Division, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701, (512) 475-1497. Comments may also be submitted electronically to rules@tea.state.tx.us or faxed to (512) 463-0028. All requests for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 15 calendar days after notice of the proposal has been published in the Texas Register.
The amendment is proposed under the Texas Education Code, §21.252(a), which requires the SBOE by rule to establish criteria for the certification of independent hearing examiners.
The proposed amendment implements the Texas Education Code, §21.252(a).
§157.41.Certification Criteria for Independent Hearing Examiners.
(a) License required. An individual who is certified as an independent hearing examiner, hereafter referred to as a "certified examiner," must be licensed to practice law in the State of Texas.
(b) Representations prohibited. A certified examiner, and the law firm with which the examiner is associated, must not serve as an agent or representative of:
(1) a school district;
(2) a teacher in any dispute with a school district; or
(3) an organization of school employees, school administrators, or school boards.
(c) Moral character and criminal history. A certified examiner must:
(1) possess good moral character; and
(2) as demonstrated by a criminal history report process required by the commissioner of education, not have been convicted, given probation (whether through deferred adjudication or otherwise), or fined for:
(A) a felony;
(B) a crime of moral turpitude; or
(C) a crime that directly relates to the duties of an independent hearing examiner in a public school setting.
(d) Status as a licensed attorney. A certified examiner must:
(1) currently be a member in good standing of the State Bar of Texas;
(2) within the last five years, not have had the examiner's bar license:
(A) reprimanded, either privately or publicly;
(B) suspended, either probated or otherwise; or
(C) revoked;
(3) have been licensed to practice law in the State of Texas or any other state for at least five years prior to application; and
(4) have engaged in the actual practice of law on a full-time basis, as defined by the Texas Board of Legal Specialization, for at least five years.
(e) Experience. During the three years immediately preceding certification, a certified examiner must have devoted a minimum of 50% of the examiner's time practicing law in some combination of the following areas, with a total of at least one-tenth or 10% of the examiner's practice involving substantial responsibility for taking part in a contested evidentiary proceeding convened pursuant to law in which the examiner personally propounded and/or defended against questions put to a witness under oath while serving as an advocate, a hearing officer, or a presiding judicial officer:
(1) civil litigation;
(2) administrative law;
(3) school law; or
(4) labor law.
(f) Continuing education. During each year of certification, a certified hearing examiner must receive credit for ten hours of continuing legal education, with three hours in the area of school law and seven hours in the area of civil trial advocacy and legal writing skills, which must include any combination of course work in evidence, civil procedure, and legal writing skills , during the period January 1 to December 31 of each year of certification.
(g) Sworn application. In order to be certified as an independent hearing examiner, an applicant must submit a sworn application to the commissioner of education. The application shall contain the following acknowledgments, waivers, and releases.
(1) The applicant agrees to authorize appropriate institutions to furnish relevant documents and information necessary in the investigation of the application, including information regarding grievances maintained by the State Bar of Texas.
(2) If selected as a certified examiner, the applicant has the continuing duty to disclose grievance matters under subsection (d)(2) of this section at any time during the certification period. Failure to report these matters constitutes grounds for rejecting an application or removal as a certified examiner.
(3) If selected as a certified examiner, the applicant has the continuing duty to disclose criminal matters under subsection (d)(2) of this section at any time during the certification period. Failure to report these matters constitutes grounds for rejecting an application or removal as a certified examiner.
(h) Assurances as to position requirements. In the sworn application, the applicant must:
(1) demonstrate that the applicant currently maintains an office or offices within the State of Texas;
(2) designate the office locations from which the applicant will accept appointments;
(3) demonstrate that the applicant provides telephone messaging and facsimile services during regular business hours;
(4) demonstrate that the applicant possesses a personal computer capable of producing text in the format specified by the commissioner;
(5) agree to attend meetings of independent hearing examiners in Austin, Texas, at the examiner's expense; and
(6) agree to comply with all reporting and procedural requirements established by the commissioner.
(i) Voluntary evaluations. The commissioner may solicit voluntary evaluations from parties to a case regarding their observations of the independent hearings process.
(j) Insufficient examiners in a region. In the event that insufficient numbers of examiners are certified for any geographic region of the state, the commissioner may assign a certified hearing examiner whose office is within reasonable proximity to the school district.
(k) Annual recertification.
(1) Certification expires on December 31 of each calendar year. All examiners seeking recertification shall reapply on a date specified by the commissioner. Certification as a hearing examiner is effective on a yearly basis only and does not confer any expectation of recertification in subsequent years.
(2) Upon written complaint by an attorney who has participated in a hearing and a response from the certified hearing examiner, the commissioner, in his discretion, may decline to recertify a certified hearing examiner, if the commissioner determines that the certified hearing examiner has failed to perform the duties of an examiner in a competent manner. The commissioner may consider, but is not limited to, the following factors:
(A) timeliness;
(B) accuracy and appropriateness of procedural and evidentiary rulings; or
(C) decorum or control.
(3) The commissioner's decision in regard to recertification is final and not appealable.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 1, 2008.
TRD-200800652
Cristina De La Fuente-Valadez
Director, Policy Coordination
Texas Education Agency
Earliest possible date of adoption: March 16, 2008
For further information, please call: (512) 475-1497