Chapter 157. Hearings and Appeals
Subchapter D. Independent Hearing Examiners
§157.41. Certification Criteria for Independent Hearing Examiners.
(a) License required. An individual who is certified as an independent hearing examiner must be licensed to practice law in the State of Texas.
(b) Representations prohibited. An independent hearing examiner, and the law firm with which the independent hearing 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. An independent hearing 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. An independent hearing 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 independent hearing examiner's bar license:
(A) reprimanded, either privately or publicly;
(B) suspended, either probated or otherwise; or
(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, an independent hearing 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 independent hearing examiner's practice involving substantial responsibility for taking part in a contested evidentiary proceeding convened pursuant to law in which the independent hearing 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, an independent 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 an independent hearing 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 an independent hearing examiner.
(3) If selected as an independent hearing 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 an independent hearing 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) agree to attend meetings of independent hearing examiners in Austin, Texas, at the examiner's expense; and
(5) 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 independent hearing examiners are certified for any geographic region of the state, the commissioner may assign an independent 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 independent hearing 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) The commissioner, in his discretion, after providing notice and an opportunity to respond, may decline to recertify an independent hearing examiner, if the commissioner determines that the independent hearing examiner has failed to perform the duties of an independent hearing examiner in a competent manner. The commissioner may consider, but is not limited to, the following factors:
(B) accuracy and appropriateness of procedural and evidentiary rulings;
(C) decorum or control; or
(D) application of appropriate legal standards.
(3) The commissioner's decision in regard to recertification is final and not appealable.
(l) Action against certification. The commissioner, after providing notice and an opportunity to respond, may take action against the certificate of an independent hearing examiner if it is determined that the independent hearing examiner, during the time the independent hearing examiner has been certified, has:
(1) served as an agent or representative of a school district;
(2) served as an agent or representative of a teacher in any dispute with a school district;
(3) served as an agent or representative of an organization of school employees, school administrators, or school boards; or
(4) failed to timely issue a recommendation.
Statutory Authority: The provisions of this §157.41 issued under the Texas Education Code, §21.252(a).
Source: The provisions of this §157.41 adopted to be effective December 15, 1995, 20 TexReg 9695; amended to be effective September 1, 1997, 22 TexReg 7035; amended to be effective September 1, 1998, 24 TexReg 7783; amended to be effective April 27, 2008, 33 TexReg 3264; amended to be effective March 7, 2012, 37 TexReg 1513; amended to be effective August 27, 2018, 43 TexReg 1854.
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